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Criminal Procedure Law

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Article 380 - NY Criminal Procedure Law

SENTENCING IN GENERAL

Section Description
380.10Applicability.
380.20Sentence required.
380.30Time for pronouncing sentence.
380.40Defendant`s presence at sentencing.
380.50Statements at time of sentence.
380.60Authority for the execution of sentence.
380.65Sentence and commitment and order of protection to accompany defendant sentenced to imprisonment.
380.70Minutes of sentence.
380.80Reporting sentence to social services.
380.85Reporting sentences to office of professional medical conduct; licensed physician, physician assistant, or specialist assistant.
380.90Reporting sentences to schools.
380.95Reporting convictions of certain school employees.
380.95*2Reporting convictions of certain school employees.*
380.96Obligation of sentencing court pursuant to article four hundred of the penal law.
380.97Notification to division of criminal justice services of determinations in certain misdemeanor cases.
 S 380.10 Applicability.
  1.  In general.  The procedure prescribed by this title applies to
sentencing for every offense, whether defined within or outside of the
penal law; provided, however, where a judicial hearing officer has
conducted the trial pursuant to section 350.20 of this chapter, all
references to a court herein shall be deemed references to such judicial
hearing officer.
  2.  Exception.  Whenever a different or inconsistent procedure is
provided by any other law in relation to sentencing for a non-criminal
offense defined therein, such different or inconsistent procedure
applies thereto.

S 380.20 Sentence required.
  The court must pronounce sentence in every case where a conviction is
entered.  If an accusatory instrument contains multiple counts and a
conviction is entered on more than one count the court must pronounce
sentence on each count.

S 380.30 Time for pronouncing sentence.
  1. In general. Sentence must be pronounced without unreasonable delay.
  2.  Court to fix time.  Upon entering a conviction the court must:
  (a)  Fix a date for pronouncing sentence; or
  (b)  Fix a date for one of the pre-sentence proceedings specified in
article four hundred; or
  (c)  Pronounce sentence on the date the conviction is entered in
accordance with the provisions of subdivision three.
  * 2. Court to fix time. Upon entering a conviction the court must:
  (a) Fix a date for pronouncing sentence; or
  (b) Fix a date for one of the pre-sentence proceedings specified in
article four hundred; or
  (c) Issue an order deferring sentencing in accordance with the
provisions of subdivision three of this section; or
  (d) Pronounce sentence on the date the conviction is entered in
accordance with the provisions of subdivision three.
* NB Expired March 31, 1994
  3.  Sentence on date of conviction.  The court may sentence the
defendant at the time the conviction is entered if:
  (a)  A pre-sentence report or a fingerprint report is not required; or
  (b)  Where any such report is required, the report has been received.
  Provided, however, that the court may not pronounce sentence at such
time without inquiring as to whether an adjournment is desired by the
defendant.  Where an adjournment is requested, the defendant must state
the purpose thereof and the court may, in its discretion, allow a
reasonable time.
  * 3. Deferral of sentencing. The court may defer sentencing of any
offender convicted of a class C, D, or E felony offense under articles
two hundred twenty and two hundred twenty-one of the penal law or any
class D or E felony offense under articles one hundred fifteen, one
hundred forty, one hundred forty-five, one hundred fifty-five, one
hundred sixty-five, one hundred seventy and one hundred ninety of the
penal law, to a specified date no later than twelve months from the
entering of a conviction if:
  (a) The defendant stands convicted of his or her first felony offense;
and
  (b) Pursuant to a plea agreement or the recommendation contained in
the pre-sentence report the judge is inclined to impose an indeterminate
term of imprisonment; and
  (c) The court believes that prompt institutional confinement is not
necessary to preserve the safety and security of society, that the
individual may benefit from the rehabilitative opportunities presented
by the deferral of sentencing, that absent such a rehabilitative
opportunity there is a likelihood that the court would impose an
indeterminate sentence of imprisonment, and that upon satisfactory
completion of the period of deferral the court would be more likely to
impose a sentence other than an indeterminate sentence of imprisonment
under article seventy of the penal law.
  In conjunction with a deferral of sentencing the court may require
that the defendant observe specified conditions of conduct and
participate in such rehabilitative programs as the court deems
appropriate. Upon application of the people made at any time during the
period of sentence deferral, or where the court believes that the
defendant may have violated the terms or conditions of the deferral
order, and the court determines that such a violation occurred, the
court may terminate the deferral order and set a date for sentencing.
  Nothing contained in this subdivision shall limit the sentencing
options which were available to the court prior to the issuance of an
order pursuant to paragraph (c) of subdivision two of this section.
* NB Expired March 31, 1994
  4.  Time for pre-sentence proceedings.  The court may conduct one or
more of the pre-sentence proceedings specified in article four hundred
at any time before sentence is pronounced.  Notice of any such
proceeding issued after the date for pronouncing sentence has been fixed
automatically adjourns the date for pronouncing sentence.  In such case
the court must fix a date for pronouncing sentence at the conclusion of
such proceeding.

S 380.40 Defendant`s presence at sentencing.
  1.  In general.  The defendant must be personally present at the time
sentence is pronounced.
  2.  Exception.  Where sentence is to be pronounced for a misdemeanor
or for a petty offense, the court may, on motion of the defendant,
dispense with the requirement that the defendant be personally present.
Any such motion must be accompanied by a waiver, signed and acknowledged
by the defendant, reciting the maximum sentence that may be imposed for
the offense and stating that the defendant waives the right to be
personally present at the time sentence is pronounced.
  3.  Corporations.  Sentence may be pronounced against a corporation in
the absence of counsel if counsel fails to appear on the date of
sentence after reasonable notice thereof.

S 380.50 Statements at time of sentence.
   1.  At  the  time  of  pronouncing sentence, the court must accord the
  prosecutor an opportunity to make a statement with respect to any matter
  relevant to the question of  sentence.    The  court  must  then  accord
  counsel  for  the  defendant  an  opportunity  to speak on behalf of the
  defendant. The  defendant  also  has  the  right  to  make  a  statement
  personally in his or her own behalf, and before pronouncing sentence the
  court  must  ask  the  defendant whether he or she wishes to make such a
  statement.
    2. (a) For purposes of this section "victim" shall mean:
    (1) the victim as indicated in the accusatory instrument; or
    (2) if such victim is  unable  or  unwilling  to  express  himself  or
  herself  before the court or a person so mentally or physically disabled
  as to make it impracticable to appear in court in person or  the  victim
  is  deceased,  a  member  of  the  family  of  such victim, or the legal
  guardian or representative of the legal guardian  of  the  victim  where
  such  guardian  or  representative  has  personal  knowledge  of  and  a
  relationship with the victim, unless the court finds that  it  would  be
  inappropriate  for  such  person  to  make  a statement on behalf of the
  victim.
    (b) If the defendant is being sentenced for a  felony  the  court,  if
  requested  at  least ten days prior to the sentencing date, shall accord
  the victim the right to make a  statement  with  regard  to  any  matter
  relevant  to  the  question  of  sentence.  The  court  shall notify the
  defendant no less than seven days prior to sentencing  of  the  victim's
  intent  to  make  a  statement  at sentencing. If the defendant does not
  receive timely notice pursuant to this subdivision,  the  defendant  may
  request a reasonable adjournment.
    (c)  Any statement by the victim must precede any statement by counsel
  to the defendant or the defendant made pursuant to  subdivision  one  of
  this  section. The defendant shall have the right to rebut any statement
  made by the victim.
    (d) Where the people and the defendant have agreed  to  a  disposition
  which includes a sentence acceptable to the court, and the court intends
  to  impose such sentence, any rebuttal by the defendant shall be limited
  to an oral presentation made at the time of sentencing.
    (e) Where (1) the defendant has been found guilty after trial or there
  is no agreement between the people and the defendant as  to  a  proposed
  sentence or the court, after the statement by the victim, chooses not to
  impose the proposed sentence agreed to by the parties; (2) the statement
  by  the  victim includes allegations about the crime that were not fully
  explored  during  the  proceedings  or  that  materially  vary  from  or
  contradict  the evidence at trial; and (3) the court determines that the
  allegations are relevant to the issue  of  sentencing,  then  the  court
  shall afford the defendant the following rights:
    (A)  a reasonable adjournment of the sentencing to allow the defendant
  to present information to rebut the allegations by the victim; and
    (B) allow the defendant to present written questions to the court that
  the defendant desires the court to put to the victim. The court may,  in
  its  discretion,  decline  to  put  any  or  all of the questions to the
  victim. Where the court declines to put any or all of the  questions  to
  the victim it shall state its reasons therefor on the record.
    (f)  If  the victim does not appear to make a statement at the time of
  sentencing, the right to make a statement is waived. The failure of  the
  victim  to  make  a  statement  shall  not  be  cause  for  delaying the
  proceedings against the defendant nor shall it affect the validity of  a
  conviction, judgment or order.
    3.  The  court  may, either before or after receiving such statements,
  summarize the factors it considers relevant for the purpose of  sentence
  and  afford  an  opportunity  to  the defendant or his or her counsel to
  comment thereon.
    4.  Regardless of whether the victim requests to make a statement with
  regard to the defendant's sentence, where the defendant is committed  to
  the  custody  of the department of corrections and community supervision
  upon a sentence of imprisonment  for  conviction  of  a  violent  felony
  offense as defined in section 70.02 of the penal law or a felony defined
  in  article  one  hundred  twenty-five  of such law, or a sex offense as
  defined in subdivision (p) of section 10.03 of the mental  hygiene  law,
  within  sixty  days  of  the imposition of sentence the prosecutor shall
  provide the  victim  with  a  form,  prepared  and  distributed  by  the
  commissioner of the department of corrections and community supervision,
  on  which the victim may indicate a demand to be informed of the escape,
  absconding,  discharge,  parole,   conditional   release,   release   to
  post-release  supervision,  transfer  to  the  custody  of the office of
  mental health pursuant to article ten of  the  mental  hygiene  law,  or
  release  from confinement under article ten of the mental hygiene law of
  the person so imprisoned. If the victim submits a completed form to  the
  prosecutor, it shall be the duty of the prosecutor to mail promptly such
  form to the department of corrections and community supervision.
    5. Following the receipt of such form from the prosecutor, it shall be
  the  duty of the department of corrections and community supervision or,
  where the person is committed to the custody of  the  office  of  mental
  health,  at  the  time such person is discharged, paroled, conditionally
  released,  released  to  post-release  supervision,  or  released   from
  confinement  under  article ten of the mental hygiene law, to notify the
  victim of such occurrence by certified  mail  directed  to  the  address
  provided  by  the  victim.  In the event such person escapes or absconds
  from a facility under the jurisdiction of the department of  corrections
  and  community  supervision,  it shall be the duty of such department to
  notify immediately the victim of such occurrence  at  the  most  current
  address  or  telephone  number  provided  by  the  victim  in  the  most
  reasonable and expedient possible manner. In the event such  escapee  or
  absconder  is  subsequently  taken  into  custody  by  the department of
  corrections and community supervision, it shall  be  the  duty  of  such
  department  to  notify  the  victim of such occurrence by certified mail
  directed to the address provided by the victim within forty-eight  hours
  of  regaining  such  custody.  In  the  case  of a person who escapes or
  absconds from confinement under article ten of the mental  hygiene  law,
  the  office  of  mental  health  shall  notify  the victim or victims in
  accordance with the procedures set forth in subdivision (g)  of  section
  10.10  of  the  mental  hygiene  law. In no case shall the state be held
  liable for failure to provide any notice required by this subdivision.
    6. Regardless of whether the victim requests to make a statement  with
  regard to the defendant's sentence, where the defendant is sentenced for
  a violent felony offense as defined in section 70.02 of the penal law or
  a  felony  defined in article one hundred twenty-five of such law or any
  of the following provisions of such law sections 130.25, 130.30, 130.40,
  130.45, 255.25, 255.26, 255.27, article two hundred sixty-three, 135.10,
  135.25, 230.05, 230.06, subdivision two of section 230.30 or 230.32, the
  prosecutor shall, within sixty  days  of  the  imposition  of  sentence,
  provide the victim with a form on which the victim may indicate a demand
  to  be  informed  of  any petition to change the name of such defendant.
  Such forms shall be maintained by such prosecutor.  Upon  receipt  of  a
  notice  of a petition to change the name of any such defendant, pursuant
  to subdivision two of section sixty-two of the  civil  rights  law,  the
  prosecutor  shall promptly notify the victim at the most current address
  or telephone number provided by such victim in the most  reasonable  and
  expedient  possible  manner  of the time and place such petition will be
  presented to the court.

S 380.60 Authority for the execution of sentence.
  Except where a sentence of death is pronounced, a certificate of
conviction showing the sentence pronounced by the court, or a certified
copy thereof, constitutes the authority for execution of the sentence
and serves as the order of commitment, and no other warrant, order of
commitment or authority is necessary to justify or to require execution
of the sentence.

S 380.65 Sentence  and  commitment  and order of protection to accompany
               defendant sentenced to imprisonment.
  A sentence and commitment or certificate of conviction, specifying the
section, and to the extent applicable, the  subdivision,  paragraph  and
subparagraph of the penal law or other statute under which the defendant
was  convicted,  or a certified copy thereof, and a copy of any order of
protection or temporary order of protection issued against the defendant
at the time of sentencing, must be delivered to the person in charge  of
the  correctional  facility  or  office  of children and family services
facility to which the defendant is committed at the time  the  defendant
is  delivered  thereto.  A  sentence  and  commitment  or certificate of
conviction is not defective by reason of a failure to  comply  with  the
provisions of this section.

* S 380.70 Minutes of sentence.
  In  any  case  where a person receives an indeterminate or determinate
sentence of imprisonment, a certified copy of the  stenographic  minutes
of  the  sentencing  proceeding  must  be  delivered by the court to the
person in charge of the institution to  which  the  defendant  has  been
delivered within thirty days from the date such sentence was imposed.
  * NB Effective until September 1, 2017
* S 380.70 Minutes of sentence.
  In  any  case  where  a  person  receives an indeterminate sentence of
imprisonment or a reformatory or alternative local reformatory  sentence
of  imprisonment,  a  certified  copy of the stenographic minutes of the
sentencing proceeding must be delivered by the court to  the  person  in
charge  of  the  institution  to  which the defendant has been delivered
within thirty days from the date such sentence was imposed.
  * NB Effective September 1, 2017

S 380.80 Reporting sentence to social services.
  Whenever a person receives a sentence of imprisonment, the court that
has sentenced such person shall deliver the certificate of conviction
and provide notification of the sentence imposed to the commissioner of
social services who, in turn, shall deliver the certificate of
conviction and provide notification of the sentence imposed to the
appropriate local commissioner of social services.

S 380.85  Reporting sentences to office of professional medical conduct;
               licensed physician, physician assistant, or specialist assistant.
  Whenever a person who is a licensed physician, physician assistant, or
specialist  assistant  or  a physician who is practicing under a limited
permit or as a medical resident is sentenced for a crime, the court that
has sentenced such person shall deliver a copy  of  the  certificate  of
conviction  and  provide  notification of the conviction and sentence to
the office of professional medical conduct.

S 380.90 Reporting sentences to schools.
  1. "Designated educational official" shall mean (a) an employee or
representative of a school district who is designated by the school
district or (b) an employee or representative of a charter school or
private elementary or secondary school who is designated by such school
to receive records pursuant to this section and to coordinate the
student`s participation in programs which may exist in the school
district or community, including: non-violent conflict resolution
programs, peer mediation programs and youth courts, extended day
programs and other school violence prevention and intervention programs.
  2. Whenever a person under the age of nineteen who is enrolled as a
student in a public or private elementary or secondary school is
sentenced for a crime, the court that has sentenced such person shall
provide notification of the conviction and sentence to the designated
educational official of the school in which such person is enrolled as a
student. Such notification shall be used by the designated educational
official only for purposes related to the execution of the student`s
educational plan, where applicable, successful school adjustment and
reentry into the community. Such notification shall be kept separate and
apart from such student`s school records and shall be accessible only by
the designated educational official. Such notification shall not be part
of such student`s permanent school record and shall not be appended to
or included in any documentation regarding such student and shall be
destroyed at such time as such student is no longer enrolled in the
school district. At no time shall such notification be used for any
purpose other than those specified in this subdivision.

* S 380.95 Reporting convictions of certain school employees.
  Upon  conviction  of  a  teacher,  as defined in subparagraph three of
paragraph b of subdivision seven-a of section three hundred five of  the
education  law, of a sex offense or sex offenses defined in subparagraph
two of paragraph b of subdivision seven-a of section three hundred  five
of  the  education  law,  the  district  attorney  or  other prosecuting
authority who obtained such conviction  shall  provide  notice  of  such
conviction  to the commissioner of education identifying the sex offense
or sex offenses of which the teacher has been convicted,  the  name  and
address of such offender and other identifying information prescribed by
the  commissioner  of  education, including the offender's date of birth
and social security number, to the extent consistent  with  federal  and
state   laws   governing   personal   privacy   and  confidentiality  of
information. Such district attorney or other prosecuting authority shall
include in such notice the name and business address of  the  offender's
counsel of record in the criminal proceeding.
  * NB There are 2 S 380.95's

* S 380.95  Reporting convictions of certain school employees.
  Upon conviction of a school administrator or supervisor, as defined in
subparagraph  three  of  paragraph  b  of subdivision seven-b of section
three hundred five of the  education  law,  of  an  offense  defined  in
subparagraph  two of paragraph b of subdivision seven-b of section three
hundred five of the  education  law,  the  district  attorney  or  other
prosecuting  authority who obtained such conviction shall provide notice
of such conviction to the  commissioner  of  education  identifying  the
offense  of  which  the  school  administrator  or  supervisor  has been
convicted, the name and address of such offender and  other  identifying
information  prescribed  by the commissioner of education, including the
offender's date of birth and  social  security  number,  to  the  extent
consistent  with  federal  and state laws governing personal privacy and
confidentiality  of  information.  Such  district  attorney   or   other
prosecuting authority shall include in such notice the name and business
address of the offender's counsel of record in the criminal proceeding.
  * NB There are 2 S 380.95's

S 380.96  Obligation of sentencing court pursuant to article four
hundred of the penal law.
Upon judgment of conviction of any offense which would require the seizure of firearms, shotguns or rifles from an individual so convicted, and the revocation of any license or registration issued pursuant to article four hundred of the penal law, the judge pronouncing sentence shall demand surrender of any such license or registration and all firearms, shotguns and rifles. The failure to so demand surrender shall not effect the validity of any revocation pursuant to article four hundred of the penal law. S 380.97 Notification to division of criminal justice services of determinations in certain misdemeanor cases. Upon judgment of conviction of assault or attempted assault in the third degree, as defined in sections 120.00 and 110.00 of the penal law, menacing or attempted menacing in the second degree, as defined in section 120.14 and 110.00 of the penal law, criminal obstruction of breathing or blood circulation or attempted criminal obstruction of breathing or blood circulation, as defined in sections 121.11 and 110.00 of the penal law, forcible touching or attempted forcible touching, as defined in sections 130.52 and 110.00 of the penal law, when the defendant has been determined, pursuant to section 370.15 of this part, to be related or situated to the victim of the offense in the manner specified in 18 U.S.C. 921(a)(33)(A)(ii), the clerk of the court shall include notification and a copy of the written determination in a report of such conviction to the division of criminal justice services to enable the division to report such determination to the federal bureau of investigation and assist the bureau in identifying persons prohibited from purchasing and possessing a firearm pursuant to the provisions of 18 U.S.C. 922. Top of Page

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