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, 2019
* 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, 2019
* 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, 2019
* 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, 2019
* 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, 2019
Last modified: February 3, 2019