Authorizes imposition of life imprisonment without parole sentence for persistent violent felony offenders upon conviction of a violent felony offense when such person has previously been subjected to two or more predicate violent felony convictions.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5334
SPONSOR: Brabenec TITLE OF BILL:
An act to amend the penal law, in relation to sentencing of persistent
violent felony offenders; and to repeal subdivision 3 of section 70.08
of such law relating to minimum periods of imprisonment for persistent
violent felony offenders
PURPOSE OR GENERAL IDEA OF BILL:
To authorize the imposition of life imprisonment without parole for
persistent violent felony offenders.
SUMMARY OF SPECIFIC PROVISIONS:
Sections 1 and 2: Amend penal law sections 70.00 (5) and 70.08 (2) to
require that criminal defendants found to be persistent violent felony
offenders, as defined in penal law section 70.08 (1) (a), be sentenced
to life imprisonment without parole.
Section 3: Repeals, as inconsistent and unnecessary, penal law section
70.08(3); which sets forth the minimum periods of imprisonment of the
various indeterminate sentences currently in place for persistent
violent felony offenders.
JUSTIFICATION:
Persistent violent offenders are a particularly menacing threat to soci-
ety. Those individuals who cannot be rehabilitated or function within
society's laws should not be set free. The category of criminal defend-
ants defined under law as persistent violent felony offenders is
comprised of those who have been convicted on at least two previous and
separate occasions of violent felony offenses such as: kidnapping, first
degree rape or criminal sexual act; first or second degree robbery,
first or second degree burglary, arson, or gang assault.
This bill would classify defendants as a persistent violent felony
offender if each of that defendant's violent felonies had been committed
after a sentence for a previous violent felony was imposed. A total of
at least three violent felonies must have been committed within 10
years, not counting time served under imprisonment, of the imposition of
sentence on the preceding violent felony. (PEOPLE V. MORSE, 62 N. Y.2d
205 1984, appeal dismissed 105 S.Ct. 951 1985). Thus, persistent
violent felony offenders are among the most dangerous of all repeat
criminals.
Although the sentences which may be imposed on persistent violent felony
offenders were increased in 1995 (Ch. 3, L.1995) so that they range from
an indeterminate term of twelve years to life up to an indeterminate
term of twenty-five years to life, this is still insufficient. Informa-
tion from the New York State Department of Corrections and Community
Supervision reveals that persistent violent felony offenders are
currently incarcerated for an average of only nine years; far less than
what is warranted by the history and nature of their crimes.
This bill will remedy the present situation of letting dangerous crimi-
nals back into society. By requiring that a defendant who has been sepa-
rately convicted and sentenced for three or more violent felonies, and
who is determined by a court to be a persistent violent felony offender,
we can sentence these individuals to life imprisonment without parole.
This will provide an additional measure of deterrence against the
commission of violent crime. The enactment of such a "Three Strikes and
You're In" law will also help to ensure that violent, recidivist crimi-
nals are permanently prevented from posing a further danger to the safe-
ty of society.
PRIOR LEGISLATIVE HISTORY:
A6667 : 2019-20
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
Increased length is incarceration for a certain population of criminals.
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.
STATE OF NEW YORK
________________________________________________________________________
5334
2021-2022 Regular Sessions
IN ASSEMBLY
February 12, 2021
___________
Introduced by M. of A. BRABENEC -- read once and referred to the Commit-
tee on Codes
AN ACT to amend the penal law, in relation to sentencing of persistent
violent felony offenders; and to repeal subdivision 3 of section 70.08
of such law relating to minimum periods of imprisonment for persistent
violent felony offenders
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 5 of section 70.00 of the penal law, as amended
2 by section 40-a of part WWW of chapter 59 of the laws of 2017, is
3 amended to read as follows:
4 5. Life imprisonment without parole. Notwithstanding any other
5 provision of law, a defendant sentenced to life imprisonment without
6 parole shall not be or become eligible for parole or conditional
7 release. For purposes of commitment and custody, other than parole and
8 conditional release, such sentence shall be deemed to be an indetermi-
9 nate sentence. A defendant may be sentenced to life imprisonment with-
10 out parole, in accordance with the procedures provided by law for impos-
11 ing such a sentence, either: (a) upon conviction for the crime of murder
12 in the first degree as defined in section 125.27 of this chapter [and in
13 accordance with the procedures provided by law for imposing a sentence
14 for such crime]; or (b) upon conviction of a violent felony offense as
15 defined in subdivision one of section 70.02 of this article when such
16 defendant has previously been subjected to two or more predicate violent
17 felony convictions as defined in paragraph (b) of subdivision one of
18 section 70.04 of this article. A defendant who was eighteen years of
19 age or older at the time of the commission of the crime must be
20 sentenced to life imprisonment without parole upon conviction for the
21 crime of terrorism as defined in section 490.25 of this chapter, where
22 the specified offense the defendant committed is a class A-I felony; the
23 crime of criminal possession of a chemical weapon or biological weapon
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03441-01-1
A. 5334 2
1 in the first degree as defined in section 490.45 of this chapter; or the
2 crime of criminal use of a chemical weapon or biological weapon in the
3 first degree as defined in section 490.55 of this chapter; provided,
4 however, that nothing in this subdivision shall preclude or prevent a
5 sentence of death when the defendant is also convicted of the crime of
6 murder in the first degree as defined in section 125.27 of this chapter,
7 or is also convicted of a violent felony offense as defined in subdivi-
8 sion one of section 70.02 of this article when such defendant has previ-
9 ously been subjected to two or more predicate violent felony convictions
10 as defined in paragraph (b) of subdivision one of section 70.04 of this
11 article. A defendant who was seventeen years of age or younger at the
12 time of the commission of the crime may be sentenced, in accordance with
13 law, to the applicable indeterminate sentence with a maximum term of
14 life imprisonment. A defendant must be sentenced to life imprisonment
15 without parole upon conviction for the crime of murder in the second
16 degree as defined in subdivision five of section 125.25 of this chapter
17 or for the crime of aggravated murder as defined in subdivision one of
18 section 125.26 of this chapter. A defendant may be sentenced to life
19 imprisonment without parole upon conviction for the crime of aggravated
20 murder as defined in subdivision two of section 125.26 of this chapter.
21 § 2. Subdivision 2 of section 70.08 of the penal law, as added by
22 chapter 481 of the laws of 1978, is amended to read as follows:
23 2. Authorized sentence. When the court has found, pursuant to the
24 provisions of the criminal procedure law, that a person is a persistent
25 violent felony offender the court must impose [an indeterminate sentence
26 of imprisonment, the maximum term of which shall be life imprisonment.
27 The minimum period of imprisonment under such sentence must be in
28 accordance with subdivision three of this section] a sentence of life
29 imprisonment without parole pursuant to section 70.00 of this article.
30 § 3. Subdivision 3 of section 70.08 of the penal law is REPEALED.
31 § 4. This act shall take effect on the ninetieth day after it shall
32 have become a law.
