N.Y. PEN. LAW § 70.04 : NY Code - Section 70.04: Sentence of imprisonment for second violent felony offender

Search N.Y. PEN. LAW § 70.04 : NY Code - Section 70.04: Sentence of imprisonment for second violent felony offender

1. Definition of second violent felony offender.
    (a)  A second violent felony offender is a person who stands convicted
  of a violent felony offense as defined in  subdivision  one  of  section
  70.02  after  having  previously  been  subjected to a predicate violent
  felony conviction as defined in paragraph (b) of this subdivision.
    (b) For the purpose of determining whether a  prior  conviction  is  a
  predicate violent felony conviction the following criteria shall apply:
    (i)  The  conviction  must have been in this state of a class A felony
  (other than one defined in article two hundred twenty) or of  a  violent
  felony  offense as defined in subdivision one of section 70.02, or of an
  offense defined by the penal law in effect  prior  to  September  first,
  nineteen  hundred  sixty-seven,  which  includes  all  of  the essential
  elements of any such felony, or in any other jurisdiction of an  offense
  which  includes  all  of  the  essential elements of any such felony for
  which a sentence to a term of imprisonment in excess of one  year  or  a
  sentence  of  death  was  authorized  and  is  authorized  in this state
  irrespective of whether such sentence was imposed;
    (ii) Sentence upon such prior conviction must have been imposed before
  commission of the present felony;
    (iii) Suspended sentence, suspended execution of sentence, a  sentence
  of  probation,  a  sentence of conditional discharge or of unconditional
  discharge, and a sentence of certification to the care  and  custody  of
  the  division  of  substance  abuse  services,  shall  be deemed to be a
  sentence;
    (iv) Except  as  provided  in  subparagraph  (v)  of  this  paragraph,
  sentence  must  have  been  imposed  not  more  than  ten  years  before
  commission of  the  felony  of  which  the  defendant  presently  stands
  convicted;
    (v)  In  calculating  the ten year period under subparagraph (iv), any
  period of time during which the person was incarcerated for  any  reason
  between  the  time  of commission of the previous felony and the time of
  commission of the present felony shall be excluded  and  such  ten  year
  period shall be extended by a period or periods equal to the time served
  under such incarceration;
    (vi)  An  offense  for  which  the  defendant has been pardoned on the
  ground of innocence shall not  be  deemed  a  predicate  violent  felony
  conviction.
    * 2.  Authorized  sentence.  When the court has found, pursuant to the
  provisions of the criminal procedure law, that  a  person  is  a  second
  violent  felony offender the court must impose a determinate sentence of
  imprisonment which shall  be  in  whole  or  half  years.  Except  where
  sentence  is imposed in accordance with the provisions of section 70.10,
  the term of such sentence must be in accordance with the  provisions  of
  subdivision three of this section.
    * NB Effective until September 1, 2011
    * 2.  Authorized  sentence.  When the court has found, pursuant to the
  provisions of the criminal procedure law, that  a  person  is  a  second
  violent  felony offender the court must impose an indeterminate sentence
  of imprisonment. Except where sentence is imposed in accordance with the
  provisions of section 70.10, the maximum term of such sentence  must  be
  in  accordance  with the provisions of subdivision three of this section
  and the minimum period of imprisonment under such sentence  must  be  in
  accordance with subdivision four of this section.
    * NB Effective September 1, 2011
    * 3. Term of sentence. The term of a determinate sentence for a second
  violent felony offender must be fixed by the court as follows:

    (a) For a class B felony, the term must be at least ten years and must
  not exceed twenty-five years;
    (b)  For  a  class C felony, the term must be at least seven years and
  must not exceed fifteen years; and
    (c) For a class D felony, the term must be at  least  five  years  and
  must not exceed seven years.
    (d)  For  a  class E felony, the term must be at least three years and
  must not exceed four years.
    * NB Effective until September 1, 2011
    * 3. Maximum term of sentence. The maximum term  of  an  indeterminate
  sentence for a second violent felony offender must be fixed by the court
  as follows:
    (a)  For  a class B felony, the term must be at least twelve years and
  must not exceed twenty-five years;
    (b) For a class C felony, the term must be at least  eight  years  and
  must not exceed fifteen years; and
    (c)  For  a  class  D felony, the term must be at least five years and
  must not exceed seven years.
    (d) For a class E felony, the term must be at least four years.
    * NB Effective September 1, 2011
    * 4.  Minimum  period  of  imprisonment.   The   minimum   period   of
  imprisonment under an indeterminate sentence for a second violent felony
  offender  must  be  fixed  by  the court at one-half of the maximum term
  imposed and must be specified in the sentence.
    * NB Effective September 1, 2011