N.Y. Penal Law § 70.06

§ 70.06 Sentence of imprisonment for second felony offender.\n 1. Definition of second felony offender.\n (a) A second felony offender is a person, other than a second violent\nfelony offender as defined in section 70.04, who stands convicted of a\nfelony defined in this chapter, other than a class A-I felony, after\nhaving previously been subjected to one or more predicate felony\nconvictions as defined in paragraph (b) of this subdivision.\n (b) For the purpose of determining whether a prior conviction is a\npredicate felony conviction the following criteria shall apply:\n (i) The conviction must have been in this state of a felony, or in any\nother jurisdiction of an offense for which a sentence to a term of\nimprisonment in excess of one year or a sentence of death was authorized\nand is authorized in this state irrespective of whether such sentence\nwas imposed;\n (ii) Sentence upon such prior conviction must have been imposed before\ncommission of the present felony;\n (iii) Suspended sentence, suspended execution of sentence, a sentence\nof probation, a sentence of conditional discharge or of unconditional\ndischarge, and a sentence of certification to the care and custody of\nthe division of substance abuse services, shall be deemed to be a\nsentence;\n (iv) Except as provided in subparagraph (v) of this paragraph,\nsentence must have been imposed not more than ten years before\ncommission of the felony of which the defendant presently stands\nconvicted;\n (v) In calculating the ten year period under subparagraph (iv), any\nperiod of time during which the person was incarcerated for any reason\nbetween the time of commission of the previous felony and the time of\ncommission of the present felony shall be excluded and such ten year\nperiod shall be extended by a period or periods equal to the time served\nunder such incarceration;\n (vi) An offense for which the defendant has been pardoned on the\nground of innocence shall not be deemed a predicate felony conviction.\n * 2. Authorized sentence. Except as provided in subdivision five or\nsix of this section, or as provided in subdivision five of section 70.80\nof this article, when the court has found, pursuant to the provisions of\nthe criminal procedure law, that a person is a second felony offender\nthe court must impose an indeterminate sentence of imprisonment. The\nmaximum term of such sentence must be in accordance with the provisions\nof subdivision three of this section and the minimum period of\nimprisonment under such sentence must be in accordance with subdivision\nfour of this section.\n * NB Effective until September 1, 2027\n * 2. Authorized sentence. Except as provided in subdivision five of\nthis section, or as provided in subdivision five of section 70.80 of\nthis article, when the court has found, pursuant to the provisions of\nthe criminal procedure law, that a person is a second felony offender\nthe court must impose an indeterminate sentence of imprisonment. The\nmaximum term of such sentence must be in accordance with the provisions\nof subdivision three of this section and the minimum period of\nimprisonment under such sentence must be in accordance with subdivision\nfour of this section.\n * NB Effective September 1, 2027\n * 3. Maximum term of sentence. Except as provided in subdivision five\nor six of this section, or as provided in subdivision five of section\n70.80 of this article, the maximum term of an indeterminate sentence for\na second felony offender must be fixed by the court as follows:\n (a) For a class A-II felony, the term must be life imprisonment;\n (b) For a class B felony, the term must be at least nine years and\nmust not exceed twenty-five years;\n (c) For a class C felony, the term must be at least six years and must\nnot exceed fifteen years;\n (d) For a class D felony, the term must be at least four years and\nmust not exceed seven years; and\n (e) For a class E felony, the term must be at least three years and\nmust not exceed four years; provided, however, that where the sentence\nis for the class E felony offense specified in section 240.32 of this\nchapter, the maximum term must be at least three years and must not\nexceed five years.\n * NB Effective until September 1, 2027\n * 3. Maximum term of sentence. Except as provided in subdivision five\nof this section, or as provided in subdivision five of section 70.80 of\nthis article, the maximum term of an indeterminate sentence for a second\nfelony offender must be fixed by the court as follows:\n (a) For a class A-II felony, the term must be life imprisonment;\n (b) For a class B felony, the term must be at least nine years and\nmust not exceed twenty-five years;\n (c) For a class C felony, the term must be at least six years and must\nnot exceed fifteen years;\n (d) For a class D felony, the term must be at least four years and\nmust not exceed seven years; and\n (e) For a class E felony, the term must be at least three years and\nmust not exceed four years.\n * NB Effective September 1, 2027\n 4. Minimum period of imprisonment. (a) The minimum period of\nimprisonment for a second felony offender convicted of a class A-II\nfelony must be fixed by the court at no less than six years and not to\nexceed twelve and one-half years and must be specified in the sentence,\nexcept that for the class A-II felony of predatory sexual assault as\ndefined in section 130.95 of this chapter or the class A-II felony of\npredatory sexual assault against a child as defined in section 130.96 of\nthis chapter, such minimum period shall be not less than ten years nor\nmore than twenty-five years.\n (b) Except as provided in paragraph (a), the minimum period of\nimprisonment under an indeterminate sentence for a second felony\noffender must be fixed by the court at one-half of the maximum term\nimposed and must be specified in the sentence.\n * 6. Determinate sentence. When the court has found, pursuant to the\nprovisions of the criminal procedure law, that a person is a second\nfelony offender and the sentence to be imposed on such person is for a\nviolent felony offense, as defined in subdivision one of section 70.02,\nthe court must impose a determinate sentence of imprisonment the term of\nwhich must be fixed by the court as follows:\n (a) For a class B violent felony offense, the term must be at least\neight years and must not exceed twenty-five years;\n (b) For a class C violent felony offense, the term must be at least\nfive years and must not exceed fifteen years;\n (c) For a class D violent felony offense, the term must be at least\nthree years and must not exceed seven years; and\n (d) For a class E violent felony offense, the term must be at least\ntwo years and must not exceed four years.\n * NB Repealed September 1, 2027\n * 7. Notwithstanding any other provision of law, in the case of a\nperson sentenced for a specified offense or offenses as defined in\nsubdivision five of section 410.91 of the criminal procedure law, who\nstands convicted of no other felony offense, who has not previously been\nconvicted of either a violent felony offense as defined in section 70.02\nof this article, a class A felony offense or a class B felony offense,\nand is not under the jurisdiction of or awaiting delivery to the\ndepartment of corrections and community supervision, the court may\ndirect that such sentence be executed as a parole supervision sentence\nas defined in and pursuant to the procedures prescribed in section\n410.91 of the criminal procedure law.\n * NB Repealed September 1, 2027\n