What Is a Three Strikes Law in New York?

Aaron Spolin

New York criminal appeals attorney Aaron Spolin works closely with clients facing the three strikes law. Call Spolin Law P.C. today at (866)-716-2805.

Many states have laws that impose extreme sentences on offenders who commit a third felony. These laws are known as “three-strikes” laws. This reference to “three strikes” is deceiving; often, a state, such as New York, has laws that increase the penalty imposed for a felony if the offender has committed even one prior felony offense.

A defendant convicted of a felony who previously committed one other felony is known in New York as a “second felony offender” or “second violent felony offender,” depending on the type of felonies committed.

A person who commits three felonies on separate occasions is known as a “persistent felony offender” or “persistent violent felony offender,” depending, again, on the type of felony committed.

New York’s sentencing provisions for first-, second-, and third-time convictions are complex, and a multitude of factors goes into the determination of whether a particular felony sentence is subject to a “two-strike” or “three-strike” enhanced penalty.

  1. What Is a Three Strikes Law in New York?
  2. Understanding Classes of New York Felonies
  3. Penalties for Strikes in New York
  4. New York Three Strikes Law FAQ
  5. Contact a New York Three Strikes Lawyer for Help

Understanding Classes of New York Felonies

To understand New York’s persistent felony offender law, it is important to understand New York’s felony system. Every felony in New York is broken down into degrees. For example, burglary may be of the first degree, second degree, or third degree.

Felonies are then categorized by class and type. Classes A-I and A-II are the most serious, followed by Class B violent felonies, B felonies, C violent felonies, C felonies, D violent felonies, D felonies, E violent felonies, and E felonies. The degree of the crime is a factor in determining the Class into which the felony falls.

In New York, Class A-I and Class A-II felonies, which include murder in the first degree, kidnapping in the first degree, and criminal sale of a controlled substance in the second degree, are not broken down into violent or non-violent offenses for purposes of sentencing. However, New York penal law lists the specific Class B-E felonies that are considered violent felony offenses.

The following are examples of violent felonies:

  • Class B violent felony: An attempt to commit a Class A felony, kidnapping in the first degree, and arson in the first degree
  • Class C violent felony: An attempt to commit a Class B violent felony, aggravated manslaughter in the second degree, and gang assault in the second degree
  • Class D violent felony: An attempt to commit a Class C violent felony, assault in the second degree, and aggravated sexual abuse in the third degree
  • Class E violent felony: Persistent sexual abuse, aggravated sexual abuse, and falsely reporting an incident in the second degree
  1. What Is a Three Strikes Law in New York?
  2. Understanding Classes of New York Felonies
  3. Penalties for Strikes in New York
  4. New York Three Strikes Law FAQ
  5. Contact a New York Three Strikes Lawyer for Help

Penalties for Strikes in New York

“Strike One” Offenses

Class A-I and A-II felonies are treated differently from the other classes of felonies, and sentencing is different from the sentencing mandates of Class B-E felonies. When a person commits a Class A-I or A-II offense, the court must set an indeterminate maximum sentence and then set an indeterminate minimum sentence. The sentences are as follows:

  • Class A-I Felony
    • Maximum Term – Life imprisonment
    • Minimum Term – 15 to 25 years in prison
  • First Degree Murder
    • Maximum Term – Death, life imprisonment without parole, life imprisonment
    • Minimum Term – 20 to 25 years in prison
  • Second Degree Murder or Aggravated Murder
    • Maximum Term – Life imprisonment without parole
    • Minimum Term – 15 to 25 years in prison
  • Attempted First Degree Murder
    • Maximum Term – Life imprisonment
    • Minimum Term – 20 to 40 years in prison
  • Terrorism or Possession or Use of a Chemical or Biological Weapon (First Degree)
    • Maximum Term – Life imprisonment without parole
    • Minimum Term – 15 to 25 years in prison
  • Class A-II Felony
    • Maximum Term – Life imprisonment
    • Minimum Term – 3 to 8.33 years in prison

Sentencing for other first offenses of other classes of felonies depends on whether the felony is a violent felony or a non-violent felony. When a person in New York commits their first non-violent felony, sentencing is defined by law as described below, the exact term of imprisonment determined according to the class of felony. The court must set a maximum indeterminate sentence and then set a minimum indeterminate sentence as follows:

  • Class B Felony
    • Maximum Term – 3 to 25 years in prison
    • Minimum Term – 1 year to one-third of the maximum sentence imposed
  • Class C Felony
    • Maximum Term – 3 to 15 years in prison
    • Minimum Term – 1 year to one-third of the maximum sentence imposed
  • Class D Felony
    • Maximum Term – 3 to 7 years in prison
    • Minimum Term – 1 year to one-third of the maximum sentence imposed
  • Class E Felony
    • Maximum Term – 3 to 4 years in prison
    • Minimum Term – 1 year to one-third of the maximum sentence imposed

If a person commits a Class B-E violent felony as defined by New York law, and has no prior violent felonies, the court must impose a determinate sentence in whole or half years as follows:

  • Class B Violent Felony
    • 5 to 25 years, or
    • 10 to 30 years for aggravated assault upon a police officer or peace officer
    • 10 to 30 for aggravated manslaughter in the first degree
  • Class C Violent Felony
    • 3.5 to 15 years, or
    • 7 to 20 years for aggravated manslaughter in the second degree
    • 3.5 to 20 years for aggravated criminally negligent homicide
    • 5 to 15 years for aggravated criminal possession of a weapon
  • Class D Violent Felony
    • 2 to 7 years, or
    • 3.5 to 7 years for criminal possession of a weapon in the third degree
    • 2 to 8 years for menacing a police officer or peace officer
  • Class E Violent Felony
    • 1.5 to 4 years

“Strike Two” Offenses

This section will consider second felony offenses for non-violent felonies. In New York, a person who has committed one or more non-violent felonies and who thereafter commits another non-violent felony is subject to stricter sentencing for that felony than a person who committed the same felony but who has no prior felony convictions.

New York penal law defines a “second felony offender” as a person convicted of a non-violent felony (other than a class A-I felony) who was previously convicted of one or more non-violent felonies as defined by New York law.

What Counts as a Prior Felony or “Predicate Felony”?

The prior felony is known as a “predicate” felony. Such a felony must be one for which a sentence of death or a sentence of imprisonment exceeding one year was authorized regardless of whether the sentence was in fact imposed.

The sentence for the predicate felony must have been imposed not more than ten years prior to the commission of the current felony. Calculation of the ten-year period is extended by any period of incarceration to which the defendant was subjected.

For purposes of New York’s second felony offender law, a “sentence” imposed for a prior offense includes:

  • A suspended sentence
  • Suspended execution of sentence
  • Sentence of probation
  • Sentence of conditional or unconditional discharge
  • Certification to the care and custody of the division of substance abuse services

Sentences for Second Non-Violent Felony Offenses

A convicted second non-violent felony offender is subject to minimum and maximum prison terms that are different from those imposed on a first-time felony offender. Such terms are indeterminate and are as follows:

  • Class A-II Felony
    • Maximum Term – Life imprisonment
    • Minimum Term – 6 to 12.5 years in prison
  • Class B Felony
    • Maximum Term – 9 to 25 years in prison
    • Minimum Term – ½ of the maximum term imposed
  • Class C Felony
    • Maximum Term – 6 to 15 years in prison
    • Minimum Term – ½ of the maximum term imposed
  • Class D Felony
    • Maximum Term – 4 to 7 years in prison
    • Minimum Term – ½ of the maximum term imposed
  • Class E Felony
    • Maximum Term – 3 to 4 years in prison
    • Minimum Term – ½ of the maximum term imposed

Second Violent Felony Offender

A second violent felony offender is one who is convicted of a violent felony and was previously convicted of another violent felony. The prior conviction must have been a Class A offense or a Class B-E violent felony as defined by New York law. The previous violent felony must have carried a sentence of death or a sentence exceeding one year or regardless of whether such sentence was in fact imposed.

As with second felony offenders, a 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 are considered sentences for purposes of New York’s second violent felony offender law.

The previous sentence must have been imposed not more than ten years before commission of the violent felony for which the defendant is currently convicted, and the ten-year period is extended for any time the defendant was incarcerated.

Sentences for Second Violent Felony Offenses

A person who is convicted of a violent felony and who has committed a previous violent felony is given an indeterminate sentence as follows:

  • Class B Felony
    • Maximum Term – 12 to 25 years in prison
    • Minimum Term – ½ of the maximum term imposed
  • Class C Felony
    • Maximum Term – 8 to 15 years in prison
    • Minimum Term – ½ of the maximum term imposed
  • Class D Felony
    • Maximum Term – 5 to 7 years in prison
    • Minimum Term – ½ of the maximum term imposed
  • Class E Felony
    • Maximum Term – 4 years in prison
    • Minimum Term – ½ of the maximum term imposed

If the defendant is currently to be sentenced for a violent felony offense and previously committed a non-violent felony offense and, the court is required to impose a determinate sentence as follows:

  • Class B Felony
    • Maximum Term – 25 years in prison
    • Minimum Term – 8 years in prison
  • Class C Felony
    • Maximum Term – 15 years in prison
    • Minimum Term – 5 years in prison
  • Class D Felony
    • Maximum Term – 7 years in prison
    • Minimum Term – 3 years in prison
  • Class E Felony
    • Maximum Term – 4 years in prison
    • Minimum Term – 2 years in prison

Enhanced Sentences for Certain Second Felony Offenders

Other provisions of New York law impose enhanced sentences on certain second felony offenders. For example, if the defendant is convicted of a felony drug offense and has been convicted of a prior non-violent felony, they are considered to be a second felony drug offender, and the court must impose a determinate sentence of imprisonment with post-release supervision as follows, depending on the class of violation of which the defendant has been convicted:

  • Class B Drug Felony – 2 to 12 years in prison
  • Class C Drug Felony – 1.5 to 8 years in prison
  • Class D Drug Felony – 1.5 to 4 years in prison
  • Class E Drug Felony – 1.5 to 2 years in prison

If the second felony drug offender had a previous violent felony conviction, the court must impose sentence as follows:

  • Class B Drug Felony – 6 to 15 years in prison
  • Class C Drug Felony – 3.5 to 9 years in prison
  • Class D Drug Felony – 2.5 to 4.5 years in prison
  • Class E Drug Felony – 2 to 2.5 years in prison

“Strike Three” Offenses

Attorneys Don Nguyen, Aaron Spolin, and Jeremy Cutcher, and legal researcher Dan DeMaria | Spolin Law P.C.

The NY criminal appeals attorneys at Spolin Law P.C. know that a third strike can mean life in prison. We fight to prevent this at all costs.

A defendant who is convicted of a non-violent felony and who has been convicted of two or more previous non-violent felony offenses is subject to a sentence that is much harsher than the sentence for a first or second felony.

What Is a Persistent Felony Offender?

In New York, a “persistent violent felony offender” is a person convicted of a violent felony offense, the offense of predatory sexual assault, or the offense of predatory sexual assault against a child, who has previously been convicted of two or more violent felony convictions. A defendant found to be a persistent violent felony offender faces drastic penalties, up to life imprisonment.

For example, if the defendant is adjudged a persistent felony offender and the court finds that the defendant’s “history and character” and the “nature and circumstances” of their criminal conduct indicate that extended incarceration and life-time supervision would best serve the public interest, the court, instead of imposing the sentence authorized for a first- or second-time felony offense, may impose the sentence of imprisonment authorized for a Class A-I felony. This means that a persistent non-violent felony offender may be sentenced to a minimum indeterminate term of 15 to 25 years’ imprisonment and a maximum of life in prison.

What Counts as a Previous Felony?

The previous convictions must be convictions for which the defendant was sentenced to a term of imprisonment exceeding one year or to death. The defendant must have been actually imprisoned for the previous convictions prior to the third conviction.

There is no requirement that the defendant’s previous felonies were committed within ten years of the current conviction, as is the case for a second felony offender or second violent felony offender. If the defendant committed two prior felonies, no matter how long ago they were committed, the defendant is considered a persistent felony offender.

Sentences for Third Felony Offenses

If a defendant is found to be a persistent violent felony offender, the court may consider the “history and character of the defendant” and “the nature and circumstances” of the criminal conduct to determine whether extended incarceration and lifetime supervision would best serve the public interest. If it determines that the public interest would be so served, the court, instead of imposing the sentence of imprisonment authorized by law for the offense, must impose sentence as follows:

  • A-II Predatory Sexual Assault
    • Maximum Term – Life imprisonment
    • Minimum Term – 25 years in prison
  • Class B Felony
    • Maximum Term – Life imprisonment
    • Minimum Term – 20 to 25 years in prison
  • Class C Felony
    • Maximum Term – Life imprisonment
    • Minimum Term – 16 to 25 years in prison
  • Class D Felony
    • Maximum Term – Life imprisonment
    • Minimum Term – 12 to 25 years in prison

As with persistent felony offenders, there is no requirement that the defendant’s previous violent felonies were committed within ten years of the current conviction. If the defendant committed two prior violent felonies, no matter how long ago they were committed, the defendant is considered a persistent violent felony offender.

  1. What Is a Three Strikes Law in New York?
  2. Understanding Classes of New York Felonies
  3. Penalties for Strikes in New York
  4. New York Three Strikes Law FAQ
  5. Contact a New York Three Strikes Lawyer for Help

New York Three Strikes Law FAQ

1. Do Felony Convictions from Other States Count Towards the Three Strikes?

Yes. Convictions for felonies in other states count as convictions for purposes of enhancing felony sentences in New York.

2. Can a Prior Felony Conviction Enhance a Felony Sentence More than Once?

Yes. The same prior felony conviction can be used to enhance a felony sentence more than once. So even if a second felony conviction resulted in an enhanced sentence because of a prior felony conviction, both of those convictions may be used against a defendant who later commits a third felony.

3. Does a Judge Have Discretion with Sentencing?

No. A judge must follow the maximum and minimum guidelines of sentencing as provided by New York law. The sentencing provisions set out in the New York statutes are not advisory. Sentencing must conform to the mandates of the statute. Except as specifically noted for Class D and Class E non-violent felonies, a judge has no discretion to set a sentence for less than the minimum term specified by law.

  1. What Is a Three Strikes Law in New York?
  2. Understanding Classes of New York Felonies
  3. Penalties for Strikes in New York
  4. New York Three Strikes Law FAQ
  5. Contact a New York Three Strikes Lawyer for Help

Contact a New York Three Strikes Lawyer for Help

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Spolin Law P.C. has a knowledgeable team of New York criminal appeals lawyers who understand three strikes law and are ready to fight for you.

The consequences for multiple felony convictions in New York are severe and far-reaching. If you have been convicted of a second or third felony, the time and bases for appeal are limited. Make sure you have an attorney with significant experience in criminal appeals to guide your case for you.

Award-winning attorney Aaron Spolin has experience appealing harsh sentences doled out under three strikes laws. He understands that your future is at stake. The goal at Spolin Law P.C. is to fight for our clients’ rights in every case and get the best outcome possible.

Call the compassionate team of legal professionals at Spolin Law P.C. today at (866)-716-2805.