General Sentencing Classifications
In general, New York classifies its felony crimes and uses those classifications to set minimum and maximum sentences for such crimes. These can be “indeterminate” sentences or “determinate” sentences. An indeterminate sentence is one for which the maximum and minimum sentences have a range of acceptable terms that the judge may impose. A determinate sentence means that the judge selects a set number of years for the minimum term and a set number of years for the maximum term.
The felony classifications are A-I (the most serious felonies), A-II, B, C, D, and E (the least serious felonies). Generally, the higher the classification, the greater the potential penalty. Class B-E felonies are further divided into non-violent felonies and violent felonies. Violent felonies are punishable with harsher sentences than non-violent felonies within the same class.
New York sentencing takes into account whether the offender is a first-time felony offender, a second felony offender, a second violent felony offender, a persistent felony offender, or a persistent violent felony offender. All of these offenders, with the exception of a first-time offender, are persons who are convicted of a felony and have previously been convicted of one or more felonies, called “predicate” felonies. A predicate felony can be a violent felony or a non-violent felony. The terms can be understood as follows:
| A person currently convicted of: | And who has previously been convicted of: | Is a: |
|---|---|---|
| Non-violent felony | One non-violent felony | Second felony offender |
| Non-violent felony | One violent felony | Second felony offender |
| Non-violent felony | One non-violent and one violent felony | Persistent felony offender* |
| Non-violent felony | Two non-violent felonies | Persistent felony offender |
| Non-violent felony | Two violent felonies | Persistent felony offender |
| Violent felony | One non-violent felony | Second felony offender |
| Violent felony | One violent felony | Second violent felony offender |
| Violent felony | One non-violent and one violent felony | Persistent felony offender |
| Violent felony | Two non-violent felonies | Persistent felony offender |
| Violent felony | Two violent felonies | Persistent violent felony offender |
- General Sentencing Classifications
- General Sentencing Rules
- Special Cases
- Final Thoughts
General Sentencing Rules
New York law sets out general rules for the sentence to be applied to a felony offense. Exceptions to these rules exist for:
- Crimes of terrorism
- Drug-related crimes
- Sex crimes
Except for the categories mentioned above, which are discussed later in this article, felony sentencing is as shown in the tables below.
These tables are based on the sentencing provisions of New York Penal Law as follows:
- 70.00 (first-time offender)
- 70.02 (violent felony offender)
- 70.04 (second violent felony offender)
- 70.06 (second felony offender)
- 70.08 (persistent violent felony offender)
- 70.10 (persistent felony offender), and
- 60.05 (A, B, certain C and D felonies and multiple felony offenders)
Some of the sentencing sections refer to other sections of New York law for the penalty to be imposed, making it difficult to conclude which sentence applies for a particular crime. This is addressed in the tables shown below.
Current Offense: Class A-I Felony
| Felony | Maximum | Minimum |
|---|---|---|
| A-1 Felony | Life | 15–25 years |
| Murder in the first degree | Life OR Life without parole [Permitted] |
20–25 years, if sentence is for other than life without parole |
| Murder in the second degree (125.25(5)) | Life without parole [Mandatory] | |
| Murder in the second degree (125.25(1)-(4)) | Life | 15–25 years |
| Aggravated murder (125.26(1)) | Life without parole [Mandatory] | |
| Aggravated murder (125.26(2)) | Life OR Life without parole [Permitted] |
15–25 years, if sentence is for other than life without parole |
| Attempted murder in the first degree | Life | 20–40 years |
| Attempted aggravated murder | Life | 20–40 years |
Current Offense: Class A-II Felony*
| Felony | Maximum | Minimum |
|---|---|---|
| A-1I Felony | Life | 3–8 years, four months |
*Excludes terrorism crimes, drug crimes, and sex crimes addressed later
As indicated in the tables below in color with [ ], New York penal law does not specify the term of imprisonment for Classes B-E offenses for a “persistent felony offender,” which is an offender, other than a persistent violent felony offender, who has committed a felony and has previously been convicted of two prior felonies. Rather, the statute (Penal Law 70.10) states that “the court, in lieu of imposing the sentence of imprisonment authorized by [sections 70.00-70.06 and 70.80] for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by that section for a class A-I felony.” Not all of those sections state the penalty for an A-I sentence. The table thus reflects he imposition of the general penalty for an A-I sentence, 15-25 years to life in prison. If the court does not impose the A-I sentence, the sentence would be defined by other applicable statutes, 70.00-70.06, and would, presumably, revert to the sentence for a second felony offender. That sentence, rather than a statutorily defined sentence, is reflected in the table.
Additionally, former section 70.06(6) set the penalty for a second felony offender currently convicted of a violent felony offense. That section was repealed, leaving the sentence for a second felony offender who is convicted of a violent felony undefined, The table assumes that the sentence would be the same as that for a second felony offender currently convicted of a non-violent offense. This sentence is indicated below in color with [ ].
Current Offense: Class B Felony
| Current Felony Offense | ||||
|---|---|---|---|---|
| Non-Violent Offense | Violent Offense | |||
| Maximum | Minimum | Maximum | Minimum | |
| No prior felony offense | 25 years | 1 year to 1/3 max term imposed | 25 years* | 5 years |
| Second felony offender | 9–25 years | ½ max term imposed | 9-25 years | ½ max term imposed |
| Second violent felony offender | N/A** | N/A | 12–25 years | ½ max term imposed |
| Persistent felony offender | 9–25 years OR Life [permitted] | ½ max term imposed OR 15–25 years | 9–25 years OR Life [permitted] | ½ max term imposed OR 15–25 years |
| Persistent violent felony offender | N/A | N/A | Life | 10–25 years |
*Exceptions:
Aggravated assault on a police officer: Max=30, min=10
Aggravated manslaughter in the first degree: Max=30, min=10
**A person convicted of a second violent felony offense or classified as a persistent violent felony offender would have to stand convicted of a violent felony offense; therefore, the penalties are not applicable where the offender stands convicted of a non-violent felony offense.
Current Offense: Class C Felony
| Current Felony Offense | ||||
|---|---|---|---|---|
| Non-Violent Offense | Violent Offense | |||
| Maximum | Minimum | Maximum | Minimum | |
| No prior felony offense | 15 years | 1 year to 1/3 max term imposed | 15 years* | 3.5 years |
| Second felony offender | 6-15 years | ½ max term imposed | 6–15 years | ½ max term imposed |
| Second violent felony offender | N/A | N/A | 8-15 years | ½ max term imposed |
| Persistent felony offender | 6–15 years OR Life [permitted] | ½ max term imposed OR 15–25 years | 6–15 years OR Life [permitted] | ½ max term imposed OR 15–25 years |
| Persistent violent felony offender | N/A | N/A | Life | 8–25 years |
*Exceptions:
Aggravated assault in the second degree: Max=20, min=7
Attempted aggravated assault on a police officer: Max=20, min=7
Aggravated criminally negligent homicide: Max=20, min=3.5
Aggravated criminal possession of a weapon: Max=15, min=5
Oher exceptions listed in 60.05(4)
Current Offense: Class D Felony
| Current Felony Offense | ||||
|---|---|---|---|---|
| Non-Violent Offense | Violent Offense | |||
| Maximum | Minimum | Maximum | Minimum | |
| No prior felony offense | 7 years* | 1 year to 1/3 max term imposed* | 7 years** | 2 years |
| Second felony offender | 4–7 years | ½ max term imposed | 4–7 years | ½ max term imposed |
| Second violent felony offender | N/A | N/A | 5–7 years | ½ max term imposed |
| Persistent felony offender | 4–7 years OR Life [permitted] | ½ max term OR 15–25 years | 4–7 years OR Life [permitted] | ½ max term OR 15–25 years |
| Persistent violent felony offender | N/A | N/A | 12–25 years | 6–25 years |
*Alternative definite sentence for Class D felony: court may impose a definite sentence of imprisonment and fix a term of one year or less or may impose probation/no jail time.
**Exceptions:
Menacing a police officer: Max=8, min=2
Criminal possession of a weapon in the third degree or criminal sale of a firearm in the third degree: Max=7, min=3.5
Current Offense: Class E Felony
| Current Felony Offense | ||||
|---|---|---|---|---|
| Non-Violent Offense | Violent Offense | |||
| Maximum | Minimum | Maximum | Minimum | |
| No prior felony offense | 3–4 years* | 1 year to 1/3 max term imposed* | 4 years* | 1.5 years* |
| Second felony offender | 3–4 years | ½ max term imposed | 3–4 years | ½ max term imposed |
| Second violent felony offender | N/A | N/A | ** | At least 4 years** |
| Persistent felony offender | 3–4 years OR Life | ½ max term imposed OR 15–25 years | 3–4 years OR Life | ½ max term imposed OR 15–25 years |
| Persistent violent felony offender | N/A | N/A | [Not defined by statute; use persistent felony offender] | [Not defined by statute; use persistent felony offender] |
*Alternative definite sentence for Class E felony: court may impose a definite sentence of imprisonment and fix a term of one year or less or may impose probation/no jail time.
**As stated in 70.04.
Special Cases
Some types of crimes have sentencing provisions that deviate from the usual sentences for Class A–E felonies. For example, crimes of terrorism have the sentencing provisions described below.
Felony Terrorism in New York
Sentences for crimes of terrorism have their own rules. Terrorism in New York is defined as committing a “specified offense” with the intent to intimidate or coerce a civilian population; influence the policy of the government by intimidation or coercion; or affect the conduct of the government by murder, assassination, or kidnapping. Generally, sentencing depends on the classification of the “specified offense” committed for the prohibited purpose.
A specified offense is:
- a Class A-I or A-II felony offense
- a violent felony offense
- manslaughter in the second degree
- criminal tampering in the first degree
- identity theft in the first or second degree
- unlawful possession of personal identification information in the first or second degree
- money laundering in support of terrorism in the first-fourth degrees
and includes an attempt or conspiracy to commit any such offense.
To determine the sentence for terrorism based on a specified offense, look first at the classification of the specified offense, then to the laws for sentencing for terrorism, which raise the offense one degree and make the offense a violent offense. For example, criminal tampering in the first degree is a Class D felony. If a person commits criminal tampering for the terroristic purposes described above, the sentencing laws for terrorism state that the crime is made a violent felony and raised one class, making it a Class C violent felony. Sentencing will therefore follow the sentencing guidelines for a Class C violent felony. Since a Class A specified offense cannot be raised a class, sentencing is separate for those offenses, as shown below.
New York law does not specify the sentence to be imposed on a second felony terrorism offender, a second violent terrorism offender, a persistent felony terrorism offender, or a persistent violent felony terrorism offender.
Thus, sentencing is as follows for most acts of terrorism:
| Specified offense class | Maximum | Minimum |
|---|---|---|
| Class A-I felony | Life without parole | |
| Class B felony | Life | 15–25 years |
| Class C felony | 25 years | 5 years |
| Class D felony | 15 years | 3.5 years |
| Class E felony | 7 years | 2 years |
Some acts of terrorism in New York have special sentences. These are as follows:
| Felony underlying act of terrorism | Maximum | Minimum |
|---|---|---|
| Criminal Possession of a Chemical or Biological Weapon in the 1st degree | Life without parole | |
| Criminal Possession of a Chemical or Biological Weapon in the 2nd degree | 3–25 years | 1 year to 1/3 max sentence imposed |
| Criminal Possession of a Chemical or Biological Weapon in the 3rd degree | 3–15 years | 1 year to 1/3 max sentence imposed |
| Criminal use of a Chemical or Biological Weapon in the 1st degree | Life without parole | |
| Criminal use of a Chemical or Biological Weapon in the 2nd degree | Life | 3 years to 8 years, 4 months |
| Criminal use of a Chemical or Biological Weapon in the 3rd degree | 3–25 years | 1 year to 1/3 max sentence imposed |
| Soliciting or providing support for an act of terrorism in the 1st degree | 3–15 years | 1 year to 1/3 max sentence imposed |
| Soliciting or providing support for an act of terrorism in the 1st degree | 3–7 years | 1 year to 1/3 max sentence imposed |
| Making a terroristic threat | 3–7 years | 1 year to 1/3 max sentence imposed |
| Hindering prosecution of terrorism in 1st degree | 3–25 years | 1 year to 1/3 max sentence imposed |
| Hindering prosecution of terrorism in 2nd degree | 3–15 years | 1 year to 1/3 max sentence imposed |
Felony Drug Offenses in New York
New York statutes define the offenses that constitute felony drug offenses. Sentences for felony drug offenses in New York are determinate sentences, that is, for a set number of years, and are shown in the table below.
As with regular felonies, the sentence for a drug felony is increased if the person convicted of a drug felony has a prior felony conviction. The prior conviction does not need to be a felony drug conviction; it can be any felony.
New York law does not define the sentence for a persistent felony drug offender or a persistent violent felony drug offender. Such offenders would presumably be sentenced according to the laws relating to persistent felony offenders and persistent violent felony offenders.
Class A-I Felony Drug Offenses
| Offender’s Status | Determinate Term |
|---|---|
| No prior felony offense | 8–20 years |
| 2nd felony drug offender, prior conviction a non-violent felony | 12–24 years |
| 2nd felony drug offender, prior conviction a violent felony | 15–30 years |
| Major drug trafficker | INDETERMINATE: Maximum=Life, Minimum=12–24 years |
Class A-II Felony Drug Offenses
| Offender’s Status | Determinate Term |
|---|---|
| No prior felony offense | 3–10 years |
| 2nd felony drug offender, prior conviction a non-violent felony | 6–14 years |
| 2nd felony drug offender, prior conviction a violent felony | 8–17 years |
Class B Felony Drug Offenses
| Offender’s Status | Determinate Term |
|---|---|
| No prior felony offense | 1–9 years* |
| 2nd felony drug offender, prior conviction a non-violent felony | 2–12 years |
| 2nd felony drug offender, prior conviction a violent felony | 6–15 years |
*Exception: criminal sale of drugs in or near school grounds or on a bus OR criminal sale of a drug to a child: 2–9 years
Class C Felony Drug Offenses
| Offender’s Status | Determinate Term |
|---|---|
| No prior felony offense | 1–5.5 years |
| 2nd felony drug offender, prior conviction a non-violent felony | 1.5–8 years |
| 2nd felony drug offender, prior conviction a violent felony | 3.5–9 years |
Class D Felony Drug Offenses
| Offender’s Status | Determinate Term |
|---|---|
| No prior felony offense | 1–2.5 years |
| 2nd felony drug offender, prior conviction a non-violent felony | 1.5–4 years |
| 2nd felony drug offender, prior conviction a violent felony | 2.5–4.5 years |
Class E Felony Drug Offenses
| Offender’s Status | Determinate Term |
|---|---|
| No prior felony offense | 1–1.5 years |
| 2nd felony drug offender, prior conviction a non-violent felony | 1.5–2 years |
| 2nd felony drug offender, prior conviction a violent felony | 2–2.5 years |
Exceptions for first-time offenders:
- For class B–E drug felonies, the court has the discretion to order probation instead of incarceration.
- For Class B–E drug felonies, except for sale of a controlled substance to a minor, the court also has the discretion to impose a determinate period of incarceration of less than one year.
- For a Class B felony, except for sale of a controlled substance to a minor, the court may order that a determinate sentence be executed as a sentence of parole supervision.
Felony Sex Offenses in New York
Sentencing for felony sex offenses is complicated as it is a mix of sentences unique to sex offenses and sentences for regular felonies. Like regular felonies, sex crimes are divided into classes A–E, with Class A crimes being the most serious offenses and carrying the longest potential sentences. Classes of felony sex crimes are further divided into violent felony sex crimes and non-violent felony sex crimes, which also affects the length of the sentence.
Class A-I Felony Sex Offense
Only a sexually motivated crime with an A-I specified offense is a Class A-I felony sex offense. A sexually motivated felony is any “specified” felony under New York law that is committed for the sexual gratification of the person committing such felony. The specified felony need not be a sex offense; murder, kidnapping, and even burglary may all be sexually motivated offenses. “Specified” felonies are listed in the New York statutes and include all violent felonies. A sexually motivated felony is considered a violent felony, and it is punishable by life without parole or 15-25 years to life.
Class A-II Felony Sex Offense — Non-Predatory
| Felony | Maximum | Minimum |
|---|---|---|
| Class A-II Felony | Life | 3–8 years, four months |
| Predatory sexual assault or predatory sexual assault against a child | Life | 10–25 years |
| Predatory sexual assault or predatory sexual assault against a child by a persistent violent felony offender | Life | 25 years |
Classes B-E Felony Sex Offenses
- The sentences for first-time non-violent felony sex offenses, Classes B-E, are set forth in the New York statutes and are listed in the tables below. (70.80(4)).
- New York penal law states that violent felony sex offenses are sentenced in accordance with the provisions of New York law setting sentences for 1) first-time violent felony offenders, 2) second violent felony offenders, 3) second felony offenders, 4) persistent violent felony offenders, or 5) persistent felony offenders, whichever section applies to the offender currently convicted of a violent felony sex offense. The tables, as indicated in color with [ ], therefore reflect the sentence that would be imposed if the violent felony sex offense were a violent felony offense.
Sentences for felony sex offenses are also dependent on whether the offender is a first-time offender or is a predicate sex offender, that is, a person who has previously been convicted of one or more felony offenses. The predicate offense does not need to be a sex offense. The sentence for a predicate sex offender depends on whether the person is currently charged with a violent sex offense or a non-violent sex offense and whether the predicate offense was a violent or non-violent felony.
New York’s statutes do not provide a specific sentence for a person who is convicted of a violent sex offense and who has a predicate violent sex offense. The sentence would presumably be the same as a sentence for a second violent felony offender, which is reflected in the tables below.
A persistent felony sex offender for purposes of felony sex-crime sentencing means the same as it does for a regular felony: a person convicted of a felony who has two or more previous felonies. For a persistent felony sex offender, if the offender currently stands convicted of a non-violent sex offense, the court may either impose the sentence for a persistent felony offender or, if it makes certain findings, impose the sentence for a Class A-I felony. As indicated in the table with [ ] New York’s penal laws do not specifically state the sentence to be imposed for a persistent felony offender who currently stands convicted of a violent felony sex offense or for a persistent violent felony offender.
Class B Felony Sex Offense
| Current Felony Offense | ||||
|---|---|---|---|---|
| Non-Violent Offense | Violent Offense | |||
| Maximum | Minimum | Maximum | Minimum | |
| No prior felony offense | 25 years | 5 years | 25 years | 5 years |
| Predicate felony sex offender — non-violent predicate felony | 25 years | 8 years | 9–25 years | ½ max term imposed |
| Predicate felony sex offender — violent predicate felony | 25 years | 9 years | 12–25 years | ½ max term imposed |
| Persistent felony offender | Same as predicate felony offender OR Life | Same as predicate felony offender OR 15–25 years | Not specified | Not specified |
| Persistent violent felony offender | N/A | N/A | Not specified | Not specified |
Class C Felony Sex Offense
| Current Felony Offense | ||||
|---|---|---|---|---|
| Non-Violent Offense | Violent Offense | |||
| Maximum | Minimum | Maximum | Minimum | |
| No prior felony offense | 15 years | 3.5 years | 15 years | 3.5 years |
| Predicate felony sex offender — non-violent predicate felony | 15 years | 5 years | 6–15 years | ½ max term imposed |
| Predicate felony sex offender — violent predicate felony | 15 years | 6 years | 8–15 years | ½ max term imposed |
| Persistent felony offender | Same as predicate felony offender OR Life | Same as predicate felony offender OR 15–25 years | Not specified | Not specified |
| Persistent violent felony offender | N/A | N/A | Not specified | Not specified |
Class D Felony Sex Offense
| Current Felony Offense | ||||
|---|---|---|---|---|
| Non-Violent Offense | Violent Offense | |||
| Maximum | Minimum | Maximum | Minimum | |
| No prior felony offense | 15 years* | 3.5 years | 15 years | 3.5 years |
| Predicate felony sex offender — non-violent predicate felony | 15 years | 5 years | 6–15 years | ½ max term imposed |
| Predicate felony sex offender — violent predicate felony | 15 years | 6 years | 8–15 years | ½ max term imposed |
| Persistent felony offender | Same as predicate felony offender OR Life | Same as predicate felony offender OR 15–25 years | Not specified | Not specified |
| Persistent violent felony offender | N/A | N/A | Not specified | Not specified |
*Court may impose probation. Court may alternately impose a definite sentence of imprisonment and fix a term of one year or less.
Class E Felony Sex Offense
| Current Felony Offense | ||||
|---|---|---|---|---|
| Non-Violent Offense | Violent Offense | |||
| Maximum | Minimum | Maximum | Minimum | |
| No prior felony offense | 4 years (70.80(4)(a)* | 1.5 years | 4 years | 1.5 years |
| Predicate felony sex offender — non-violent predicate felony | 4 years (70.80(5)(b) | 2 years | 4 years | 2 years |
| Predicate felony sex offender — violent predicate felony | 4 years (70.80(5)(c) | 2.5 years | 4 years | 2.5 years |
| Persistent felony offender | Same as predicate felony offender OR Life | Same as predicate felony offender OR 15–25 years | Not specified | Not specified |
*Court may impose probation. Court may alternately impose a definite sentence of imprisonment and fix a term of one year or less.
Exceptions to Felony Sex Offense Sentencing: Multiple Child Sexual Assaults
A felony sex assault against a child is any felony offense that includes the commission or attempted commission of sexual conduct, which is sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact, with a child younger than ten. A person who commits more than one felony sexual assault against a child can face different penalties than those in the tables above. Sentencing depends on the class of felony with which the offender is convicted as well as the class of felony that he or she previously committed (called the “predicate felony”). Sentencing is as described in the table below.
| Offender Is Currently Convicted Of | And Predicate Felony Offense Was | Sentence | |
|---|---|---|---|
| Maximum | Minimum | ||
| Class A-II or B | Class A-II, B or C | Life | 15–25 years |
| Class B | D or E | 30 | 12 |
| Class C | A-II, B, or C | 30 OR Life* | 12 OR 15–25 |
| Class D | Any felony sex offense | 15 | 5 |
| Class E | Class D or E | 15 | 5 |
| Class F | Any felony sex offense | 12 | 4 |
*Court has the discretion to impose the greater sentence
Exceptions to Felony Sex Offense Sentencing: Sexually Motivated Felony Offense
As stated above, a sexually motivated felony is any “specified” felony under New York law that is committed for the sexual gratification of the person committing such felony.
Sentencing for a sexually motivated felony depends on the classification of the underlying felony. It is the same as the sentence for a violent felony offense of that class.
| Class of Crime that was Sexually Motivated | Maximum | Minimum |
|---|---|---|
| Class A-I | Life without parole or Life | 15–25 years |
| Class A-II | Life | 3–8 years, four months |
| Class B | 25 years | 5 years |
| Class C | 15 years | 3.5 years |
| Class D | 7 years | 2 years |
| Class E | 4 years | 1.5 years |
Final Thoughts
Trying to determine the exact sentence for a particular crime is not an easy task in New York. The tables above, based on New York law, include the clear penalties that apply as well as the ambiguous penalties (included as color-coded squares in the tables) that might apply. On appeal, it takes an experienced, savvy, dedicated attorney to figure out whether the sentence imposed was the proper sentence for the offense committed. If you believe you have been improperly sentenced, you should consult Spolin Law P.C., as soon as possible.