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Article 65 - NY Penal Law

SENTENCES OF PROBATION, CONDITIONAL DISCHARGE
AND UNCONDITIONAL DISCHARGE
65.00 Sentence of probation.
65.05 Sentence of conditional discharge.
65.10 Conditions of probation and of conditional discharge.
65.15 Calculation of periods of probation and of conditional discharge.
65.20 Sentence of unconditional discharge.

S 65.00 Sentence of probation.

  1.  Criteria.  (a)  Except  as  otherwise required by section 60.04 or
  60.05 of this title, and except as provided by paragraph (b) hereof, the
  court may sentence a person to a period of probation upon conviction  of
  any crime if the court, having regard to the nature and circumstances of
  the  crime and to the history, character and condition of the defendant,
  is of the opinion that:
    (i) Institutional confinement for the term authorized by  law  of  the
  defendant is or may not be necessary for the protection of the public;
    (ii)  the  defendant  is  in  need  of  guidance,  training  or  other
  assistance which, in his case, can be effectively  administered  through
  probation supervision; and
    (iii) such disposition is not inconsistent with the ends of justice.
    (b) The court, with the concurrence of either the administrative judge
  of  the  court  or  of  the  judicial district within which the court is
  situated or such administrative judge as the presiding  justice  of  the
  appropriate appellate division shall designate, may sentence a person to
  a  period of probation upon conviction of a class A-II felony defined in
  article two hundred twenty, the class B felony defined in section 220.48
  of this chapter or any other class  B  felony  defined  in  article  two
  hundred  twenty of this chapter where the person is a second felony drug
  offender as defined in paragraph (b) of subdivision one of section 70.70
  of this chapter, if the prosecutor either orally on the record or  in  a
  writing  filed  with  the  indictment recommends that the court sentence
  such person to a period of probation upon the ground  that  such  person
  has   or   is   providing  material  assistance  in  the  investigation,
  apprehension or prosecution of  any  person  for  a  felony  defined  in
  article  two  hundred  twenty or the attempt or the conspiracy to commit
  any such felony, and if the court,  having  regard  to  the  nature  and
  circumstances  of  the crime and to the history, character and condition
  of the defendant is of the opinion that:
    (i) Institutional confinement of the defendant is  not  necessary  for
  the protection of the public;
    (ii)  The  defendant  is  in  need  of  guidance,  training  or  other
  assistance which, in his case, can be effectively  administered  through
  probation supervision;
    (iii)  The  defendant  has  or is providing material assistance in the
  investigation, apprehension or prosecution of  a  person  for  a  felony
  defined  in  article  two hundred twenty or the attempt or conspiracy to
  commit any such felony; and
    (iv) Such disposition is not inconsistent with the ends of justice.
    * Provided, however, that the court shall not, except  to  the  extent
  authorized  by paragraph (d) of subdivision two of section 60.01 of this
  chapter, impose a sentence of probation in any case where it sentences a
  defendant for more than one crime and imposes a sentence of imprisonment
  for any one of the crimes, or where  the  defendant  is  subject  to  an
  undischarged indeterminate or determinate sentence of imprisonment which
  was  imposed  at  a  previous time by a court of this state and has more
  than one year to run.
    * NB Effective until September 1, 2015
    * Provided, however, that the court shall not, except  to  the  extent
  authorized  by paragraph (d) of subdivision two of section 60.01 of this
  chapter, impose a sentence of probation in any case where it sentences a
  defendant for more than one crime and imposes a sentence of imprisonment
  for any one of the crimes, or where  the  defendant  is  subject  to  an
  undischarged indeterminate or reformatory sentence of imprisonment which
  was  imposed  at  a  previous time by a court of this state and has more
  than one year to run.
    * NB Effective September 1, 2015
    2.  Sentence.  When a person is sentenced to a period of probation the
  court shall, except  to  the  extent  authorized  by  paragraph  (d)  of
  subdivision  two  of  section  60.01  of this chapter, impose the period
  authorized by subdivision three of this section and  shall  specify,  in
  accordance  with  section 65.10, the conditions to be complied with. The
  court may modify or enlarge the conditions or, if the defendant  commits
  an  additional  offense  or violates a condition, revoke the sentence at
  any time prior to  the  expiration  or  termination  of  the  period  of
  probation.
    3.  Periods  of probation. Unless terminated sooner in accordance with
  the criminal procedure law, the period of probation shall be as follows:
    (a) (i) For a felony, other  than  a  class  A-II  felony  defined  in
  article two hundred twenty of this chapter or the class B felony defined
  in  section  220.48 of this chapter, or any other class B felony defined
  in article two hundred twenty of this  chapter  committed  by  a  second
  felony drug offender, or a sexual assault, the period of probation shall
  be five years;
    (ii) For a class A-II felony drug offender as defined in paragraph (a)
  of  subdivision  one  of  section  70.71 of this chapter as described in
  paragraph (b) of subdivision one of this section, or a  class  B  felony
  committed by a second felony drug offender described in paragraph (b) of
  subdivision  one  of this section, the period of probation shall be life
  and for a class B felony defined in section 220.48 of this chapter,  the
  period of probation shall be twenty-five years;
    (iii)  For  a  felony sexual assault, the period of probation shall be
  ten years.
    (b) (i) For a class A misdemeanor, other than a  sexual  assault,  the
  period of probation shall be three years;
    (ii) For a class A misdemeanor sexual assault, the period of probation
  shall be six years.
    (c)  For  a  class B misdemeanor, the period of probation shall be one
  year, except the period of probation shall be no less than one year  and
  no  more than three years for the class B misdemeanor of public lewdness
  as defined in section 245.00 of this chapter;
    (d) For an unclassified misdemeanor, the period of probation shall  be
  three  years  if the authorized sentence of imprisonment is in excess of
  three months, otherwise the period of probation shall be one year.
    For the purposes of this section, the term "sexual assault"  means  an
  offense   defined   in   article  one  hundred  thirty  or  two  hundred
  sixty-three, or in section 255.25, 255.26 or 255.27 of this chapter,  or
  an attempt to commit any of the foregoing offenses.
    4.  In  any  case  where  a  court  pursuant  to  its  authority under
  subdivision four of section 60.01 of this chapter revokes probation  and
  sentences  such  person  to  imprisonment  and probation, as provided in
  paragraph (d) of subdivision two of section 60.01 of this  chapter,  the
  period  of  probation  shall  be  the  remaining  period of the original
  probation sentence or one year whichever is greater.

S 65.05 Sentence of conditional discharge.
  1. Criteria. (a) Except as otherwise required by section 60.05, the
court may impose a sentence of conditional discharge for an offense if
the court, having regard to the nature and circumstances of the offense
and to the history, character and condition of the defendant, is of the
opinion that neither the public interest nor the ends of justice would
be served by a sentence of imprisonment and that probation supervision
is not appropriate.
  (b) When a sentence of conditional discharge is imposed for a felony,
the court shall set forth in the record the reasons for its action.
  2. Sentence. Except to the extent authorized by paragraph (d) of
subdivision two of section 60.01 of this chapter, when the court imposes
a sentence of conditional discharge the defendant shall be released with
respect to the conviction for which the sentence is imposed without
imprisonment or probation supervision but subject, during the period of
conditional discharge, to such conditions as the court may determine.
The court shall impose the period of conditional discharge authorized by
subdivision three of this section and shall specify, in accordance with
section 65.10, the conditions to be complied with.  If a defendant is
sentenced pursuant to paragraph (e) of subdivision two of section 65.10
of this chapter, the court shall require the administrator of the
program to provide written notice to the court of any violation of
program participation by the defendant. The court may modify or enlarge
the conditions or, if the defendant commits an additional offense or
violates a condition, revoke the sentence at any time prior to the
expiration or termination of the period of conditional discharge.
  3. Periods of conditional discharge. Unless terminated sooner in
accordance with the criminal procedure law, the period of conditional
discharge shall be as follows:
  (a) Three years in the case of a felony; and
  (b) One year in the case of a misdemeanor or a violation.
  Where the court has required, as a condition of the sentence, that the
defendant make restitution of the fruits of his or her offense or make
reparation for the loss caused thereby and such condition has not been
satisfied, the court, at any time prior to the expiration or termination
of the period of conditional discharge, may impose an additional period.
The length of the additional period shall be fixed by the court at the
time it is imposed and shall not be more than two years. All of the
incidents of the original sentence, including the authority of the court
to modify or enlarge the conditions, shall continue to apply during such
additional period.

S 65.10 Conditions of probation and of conditional discharge.
  1. In general. The conditions of probation and of conditional
discharge shall be such as the court, in its discretion, deems
reasonably necessary to insure that the defendant will lead a
law-abiding life or to assist him to do so.
  2. Conditions relating to conduct and rehabilitation. When imposing  a
sentence of probation or of conditional discharge, the court shall, as a
condition  of  the sentence, consider restitution or reparation and may,
as a condition of the sentence, require that the defendant:
  (a) Avoid injurious or vicious habits;
  (b) Refrain  from  frequenting  unlawful  or  disreputable  places  or
consorting with disreputable persons;
  (c)  Work  faithfully  at a suitable employment or faithfully pursue a
course of study or of  vocational  training  that  will  equip  him  for
suitable employment;
  (d) Undergo available medical or psychiatric treatment and remain in a
specified institution, when required for that purpose;
  (e)  Participate  in  an  alcohol  or  substance  abuse  program or an
intervention program approved by the court after consultation  with  the
local  probation department having jurisdiction, or such other public or
private agency as the court determines to be appropriate;
  (e-1) Participate in a motor vehicle accident prevention  course.  The
court  may require such condition where a person has been convicted of a
traffic infraction for a violation of article twenty-six of the  vehicle
and  traffic  law  where  the  commission  of  such violation caused the
serious physical injury or death of another person. For purposes of this
paragraph, the term "motor vehicle  accident  prevention  course"  shall
mean  a  motor  vehicle  accident  prevention  course  approved  by  the
department of motor vehicles pursuant to article twelve-B of the vehicle
and traffic law;
  (f) Support his dependents and meet other family responsibilities;
  (g) Make restitution of the fruits of  his  or  her  offense  or  make
reparation,  in  an  amount  he  can  afford  to  pay,  for  the  actual
out-of-pocket loss caused thereby. When restitution or reparation  is  a
condition  of  the sentence, the court shall fix the amount thereof, the
manner of performance, specifically state the date when  restitution  is
to  be paid in full prior to the expiration of the sentence of probation
and may establish provisions for the early termination of a sentence  of
probation  or  conditional  discharge  pursuant  to  the  provisions  of
subdivision three of section 410.90 of the criminal procedure law  after
the  restitution  and  reparation  part  of  a  sentence of probation or
conditional discharge has been satisfied. The court shall  provide  that
in  the event the person to whom restitution or reparation is to be made
dies prior to the completion of  said  restitution  or  reparation,  the
remaining payments shall be made to the estate of the deceased.
  (g-1)  Reimburse  a consumer credit reporting agency for the amount of
the fee or fees that could  have  been  charged  by  such  agency  to  a
domestic  violence  victim, as defined in section three hundred eighty-t
of the general business law,  had  such  victim  not  been  eligible  to
receive  security freeze services without charge pursuant to subdivision
(n) of such section;
  (h) Perform services  for  a  public  or  not-for-profit  corporation,
association,  institution  or  agency,  including  but  not  limited  to
services for the division of substance abuse services,  services  in  an
appropriate  community  program  for  removal of graffiti from public or
private property, including  any  property  damaged  in  the  underlying
offense,  or services for the maintenance and repair of real or personal
property maintained as a cemetery plot, grave,  burial  place  or  other
place  of  interment  of  human  remains.  Provided  however,  that  the
performance of any such services shall not result in the displacement of
employed  workers  or  in  the  impairment  of  existing  contracts  for
services,  nor shall the performance of any such services be required or
permitted in any establishment involved in any labor strike or  lockout.
The  court  may  establish  provisions  for  the  early termination of a
sentence  of  probation  or  conditional  discharge  pursuant   to   the
provisions  of  subdivision  three  of  section  410.90  of the criminal
procedure law after such services have been completed. Such sentence may
only be imposed upon conviction of a misdemeanor, violation, or class  D
or  class  E  felony,  or a youthful offender finding replacing any such
conviction,  where  the  defendant  has  consented  to  the  amount  and
conditions of such service;
  (i)  If  a  person under the age of twenty-one years, (i) resides with
his parents or in a suitable foster home or hostel  as  referred  to  in
section  two  hundred  forty-four  of  the  executive  law, (ii) attends
school, (iii) spends such part of the period  of  the  sentence  as  the
court  may  direct,  but  not  exceeding  two  years, in a facility made
available by the division for youth pursuant to  article  nineteen-G  of
the  executive law, provided that admission to such facility may be made
only with the prior consent of the division for  youth,  (iv)  attend  a
non-residential  program  for  such  hours  and  pursuant  to a schedule
prescribed by the court as suitable for a program of  rehabilitation  of
youth,  (v)  contribute  to  his own support in any home, foster home or
hostel;
  (j) Post a bond or other security for the performance of  any  or  all
conditions imposed;
  (k) Observe certain specified conditions of conduct as set forth in an
order  of  protection issued pursuant to section 530.12 or 530.13 of the
criminal procedure law.
  (k-1) Install and maintain a functioning ignition interlock device, as
that term is defined in section one hundred nineteen-a  of  the  vehicle
and  traffic  law,  in any vehicle owned or operated by the defendant if
the court  in  its  discretion  determines  that  such  a  condition  is
necessary  to  ensure  the  public  safety.  The  court may require such
condition only where a person has  been  convicted  of  a  violation  of
subdivision  two, two-a or three of section eleven hundred ninety-two of
the vehicle and traffic law, or any crime defined  by  the  vehicle  and
traffic law or this chapter of which an alcohol-related violation of any
provision  of  section  eleven  hundred  ninety-two  of  the vehicle and
traffic law is an essential element. The offender shall be  required  to
install  and  operate  the  ignition interlock device only in accordance
with section eleven hundred ninety-eight of the vehicle and traffic law.
  (l)  Satisfy  any  other  conditions   reasonably   related   to   his
rehabilitation.
  3. Conditions  relating  to  supervision. When imposing a sentence of
probation the court, in addition to any conditions imposed  pursuant  to
subdivision  two  of  this  section,  shall require as conditions of the
sentence, that the defendant:
  (a) Report to a probation officer as directed  by  the  court  or  the
probation  officer  and permit the probation officer to visit him at his
place of abode or elsewhere;
  (b) Remain  within  the  jurisdiction  of  the  court  unless  granted
permission  to  leave  by  the  court  or the probation officer. Where a
defendant  is  granted  permission  to  move  or  travel   outside   the
jurisdiction  of the court, the defendant shall sign a written waiver of
extradition  agreeing  to  waive  extradition  proceedings  where   such
proceedings  are  the  result  of the issuance of a warrant by the court
 pursuant to subdivision two of section 410.40 of the criminal  procedure
law  based on an alleged violation of probation. Where any county or the
city of New  York  incurs  costs  associated  with  the  return  of  any
probationer  based on the issuance of a warrant by the court pursuant to
subdivision two of section 410.40 of the  criminal  procedure  law,  the
jurisdiction  may collect the reasonable and necessary expenses involved
in connection with his or her transport, from the probationer;  provided
that  where the sentence of probation is not revoked pursuant to section
410.70 of the criminal procedure law no such expenses may be collected.
  (c) Answer all reasonable  inquiries  by  the  probation  officer  and
notify  the  probation  officer  prior  to  any  change  in  address  or
employment.
  4. Electronic monitoring. When imposing a sentence of probation the
court may, in addition to any conditions imposed pursuant to
subdivisions two and three of this section, require the defendant to
submit to the use of an electronic monitoring device and/or to follow a
schedule that governs the defendant`s daily movement. Such condition may
be imposed only where the court, in its discretion, determines that
requiring the defendant to comply with such condition will advance
public safety, probationer control or probationer surveillance.
Electronic monitoring shall be used in accordance with uniform
procedures developed by the division of probation and correctional
alternatives.
  4-a. Mandatory  conditions  for  sex  offenders.  (a) When imposing a
sentence of probation or conditional discharge upon a  person  convicted
of  an  offense  defined  in  article  one  hundred  thirty, two hundred
thirty-five or two hundred  sixty-three  of  this  chapter,  or  section
255.25, 255.26 or 255.27 of this chapter, and the victim of such offense
was under the age of eighteen at the time of such offense or such person
has  been  designated a level three sex offender pursuant to subdivision
six of section 168-l of the correction law, the court shall require,  as
a  mandatory  condition  of  such sentence, that such sentenced offender
shall refrain from knowingly entering into or upon any  school  grounds,
as  that  term  is  defined in subdivision fourteen of section 220.00 of
this chapter, or any other facility or institution  primarily  used  for
the  care or treatment of persons under the age of eighteen while one or
more of such persons under the age of  eighteen  are  present,  provided
however,  that  when  such sentenced offender is a registered student or
participant or an employee of such facility  or  institution  or  entity
contracting  therewith  or has a family member enrolled in such facility
or  institution,  such  sentenced  offender  may,   with   the   written
authorization  of  his  or  her  probation  officer or the court and the
superintendent or chief administrator of such facility,  institution  or
grounds,  enter  such facility, institution or upon such grounds for the
limited purposes authorized by the probation officer or  the  court  and
superintendent  or  chief  officer. Nothing in this subdivision shall be
construed as restricting any lawful condition of supervision that may be
imposed on such sentenced offender.
  (b) When imposing a sentence of  probation  or  conditional  discharge
upon  a  person  convicted of an offense for which registration as a sex
offender is required pursuant to subdivision two or three of section one
hundred sixty-eight-a of the correction law,  and  the  victim  of  such
offense  was  under  the  age of eighteen at the time of such offense or
such person has been designated a level three sex offender  pursuant  to
subdivision  six  of section one hundred sixty-eight-l of the correction
law or the internet was used to facilitate the commission of the  crime,
the  court shall require, as mandatory conditions of such sentence, that
such sentenced offender be prohibited from using the internet to  access
pornographic  material,  access  a commercial social networking website,
communicate  with  other  individuals  or  groups  for  the  purpose  of
promoting  sexual  relations with persons under the age of eighteen, and
communicate  with  a person under the age of eighteen when such offender
is over the age of eighteen, provided  that  the  court  may  permit  an
offender  to use the internet to communicate with a person under the age
of eighteen when such offender is the parent of a minor child and is not
otherwise prohibited from communicating with such child. Nothing in this
subdivision shall be construed as restricting any other lawful condition
of supervision that may be imposed on such sentenced offender.  As  used
in this subdivision, a "commercial social networking website" shall mean
any  business,  organization  or  other  entity operating a website that
permits persons under eighteen years of age to be registered  users  for
the  purpose  of  establishing  personal relationships with other users,
where such persons under eighteen years of age may: (i) create web pages
or profiles that provide information about  themselves  where  such  web
pages  or  profiles  are available to the public or to other users; (ii)
engage in direct or real time communication with other users, such as  a
chat  room or instant messenger; and (iii) communicate with persons over
eighteen years of age; provided, however, that,  for  purposes  of  this
subdivision,  a commercial social networking website shall not include a
website that permits users to engage in such other activities as are not
enumerated herein.
  5. Other conditions. When imposing a sentence of probation  the  court
may, in addition to any conditions imposed pursuant to subdivisions two,
three  and  four of this section, require that the defendant comply with
any other reasonable condition  as  the  court  shall  determine  to  be
necessary  or  appropriate  to ameliorate the conduct which gave rise to
the offense or to prevent the incarceration of the defendant.
  5-a. Other conditions for sex offenders. When imposing a  sentence  of
probation  upon  a person convicted of an offense for which registration
as a sex offender is required pursuant to subdivision two  or  three  of
section  one hundred sixty-eight-a of the correction law, in addition to
any conditions required under subdivisions two, three, four, four-a  and
five  of  this  section, the court may require that the defendant comply
with a reasonable limitation on his or her use of the internet that  the
court  determines  to  be  necessary  or  appropriate  to ameliorate the
conduct which gave rise to the offense  or  to  protect  public  safety,
provided  that the court shall not prohibit such sentenced offender from
using the internet in connection with education,  lawful  employment  or
search for lawful employment.

S 65.15 Calculation of periods of probation and of conditional discharge.
   1. A  period  of  probation  or  a  period  or  additional  period  of
  conditional  discharge  commences  on  the  day  it is imposed. Multiple
  periods, whether imposed at the same or at different  times,  shall  run
  concurrently.
    2.  When  a  person  has  violated  the conditions of his probation or
  conditional discharge and is  declared  delinquent  by  the  court,  the
  declaration of delinquency shall interrupt the period of the sentence as
  of  the  date  of  the  delinquency and such interruption shall continue
  until a final determination as to the delinquency has been made  by  the
  court  pursuant  to  a hearing held in accordance with the provisions of
  the criminal procedure law.
    * 3. In any case where a person who is under a sentence  of  probation
  or   of   conditional  discharge  is  also  under  an  indeterminate  or
  determinate sentence of imprisonment, imposed for some other offense  by
  a  court of this state the service of the sentence of imprisonment shall
  satisfy the sentence of probation or of conditional discharge unless the
  sentence of probation or of conditional discharge is  revoked  prior  to
  the   next   to  occur  of  parole  or  conditional  release  under,  or
  satisfaction of, the sentence of imprisonment. Provided,  however,  that
  the  service of an indeterminate or determinate sentence of imprisonment
  shall not satisfy a sentence of probation if the sentence  of  probation
  was  imposed at a time when the sentence of imprisonment had one year or
  less to run.
    * NB Effective until September 1, 2015
    * 3. In any case where a person who is under a sentence  of  probation
  or  of  conditional discharge is also under an indeterminate sentence of
  imprisonment, or a reformatory sentence of  imprisonment  authorized  by
  section  75.00,  imposed for some other offense by a court of this state
  the service of the sentence of imprisonment shall satisfy  the  sentence
  of  probation  or  of  conditional  discharge  unless  the  sentence  of
  probation or of conditional discharge is revoked prior to  the  next  to
  occur  of  parole  or conditional release under, or satisfaction of, the
  sentence of imprisonment. Provided, however,  that  the  service  of  an
  indeterminate  or  a  reformatory  sentence  of  imprisonment  shall not
  satisfy a sentence of probation if the sentence of probation was imposed
  at a time when the sentence of imprisonment had one year or less to run.
    * NB Effective September 1, 2015

S 65.20 Sentence of unconditional discharge.
  1. Criteria. The court may impose a sentence of unconditional
discharge in any case where it is authorized to impose a sentence of
conditional discharge under section 65.05 if the court is of the opinion
that no proper purpose would be served by imposing any condition upon
the defendant`s release.
  When a sentence of unconditional discharge is imposed for a felony,
the court shall set forth in the record the reasons for its action.
  2. Sentence. When the court imposes a sentence of unconditional
discharge, the defendant shall be released with respect to the
conviction for which the sentence is imposed without imprisonment, fine
or probation supervision. A sentence of unconditional discharge is for
all purposes a final judgment of conviction.

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