Sample Sentence Analysis

Client: John Smith

Assumptions:

Offenses:
Client will be sentenced in two different courts on two different offenses. In New York County the client has already entered a plea of guilty to Sodomy in the 2nd Degree and the expected sentence is an indeterminate sentence of 2 1/3 - 7 years. Sentencing is scheduled for January 6, 2004. In Monroe County a plea bargain has been offered that would require the client to plea to Sexual Abuse in the 1st Degree for which it is proposed that he will receive a determinate sentence of 2 _ years and 3 years post-release supervision. It is proposed as part of this plea bargain that the sentences will run consecutively.

Question:
How will the sentence time be calculated and in practical terms what will be the effect of such sentences running consecutively?

Answer:
The effect of having these two sentences run consecutively when one is a determinate sentence and one is an indeterminate sentence requires the calculation of a new aggregate maximum term of imprisonment. That calculation is made by adding the minimum term of the indeterminate sentence to the determinate sentence. Using the terms from the proposed sentences the new aggregate maximum sentence would be 4 years and 10 months. BUT, the applicable statute provides that "in no event shall the aggregate maximum so calculated be less than the term or maximum term of imprisonment of the sentence which has the longest unexpired time to run." Therefore, in the case of the two assumed sentences, the aggregate maximum term of imprisonment will be 7 years. Penal Law §70.30(1)(d).

Aggregate Maximum Term: 7 years
The next step in the calculation is to determine the parole eligibility date for Mr. Williams. The parole eligibility date is the earliest date that he will be eligible to appear before the parole board for parole release. In this case the parole eligibility date is calculated by adding together 6/7ths of the determinate sentence and the minimum term on the indeterminate sentence. 6/7ths of 2 _ years is 2 years, 1 month and 23 days. When that is added to 2 1/3 years you get a parole eligibility date that will occur after the service of 4 years, 5 months, and 23 days.

Parole Eligibility: 4 years, 5 months, 23 days
The final step in calculating time is to determine the conditional release date.
That is, the date that Mr. Williams will have to be release if he earns all of his good behavior time and if he has not yet been granted parole release. In this case the conditional release date would occur after the service of 4 years and 8 months. The effect of this is that even if Mr. Williams does not make parole at his first try, after doing 4 years, 5 months, and 23 days, he will be eligible for conditional release only 2months and 7 days later. ( Note: The conditional release date in this case is calculated by taking 2/3rds of 7 years).

Conditional Release: 4 years, 8 months

Post-Release Supervision:
Because it is proposed that the client receive 3 years of post-release supervision, it is necessary to explain how that will affect the calculation of the sentence.

If Mr. Williams is released at his conditional release date, the 2 years and 4 months that he would still owe on his sentence is held in abeyance. If he then serves out his 3 years of post-release supervision (supervised by a parole officer) successfully, then the remaining 2 years and 4 months is credited with and diminished by the 3 years post-release supervision, and the sentence expires upon the completion of the 3 years of post-release supervision.

If Post-Release Supervision Violated:
It should also be explained to Mr. Williams that there will be dire consequences if he violates his post-release supervision. That is, not only might he have to go back to prison to serve the time owing on the sentence that was held in abeyance of 2 years and 4 months, but he could be required to serve additional prison time for the time that he has left to serve on his post-release supervision.

For example, suppose that after being released at his conditional release date, and then serving 2 years of post-release supervision, Mr. Williams gets violated. The parole board will then have the authority to assess time against the violation. Suppose that they assess two years. He will then go back to prison to serve that two years, being applied against the penal sentence with an aggregate maximum term of 7 years. After serving that 2 years he would then be released on post-release supervision. The 4 months that he still owed on the penal sentence, is again held in abeyance while he starts to serve the remaining year of his post-release supervision. Suppose that on his first day of release he violates again. His time could be assessed at 4 months (time held in abeyance still owing on the penal sentence) plus an additional 1 year (time still owing on post-release supervision. Consequently, he could go back to prison to serve an additional 1 year and 4 months. The result of these violations and time assessments, in this hypothetical of violations, would total more than the 7 year aggregate maximum term. In this scenario, he would actually serve 8 years. As you can see there are many variations based upon how many times he is violated and how long he does well on post-release supervision. In an absolute worst case scenario, that is, if he violated on the first day of his post-release supervision, every time he was release, he could actually end up serving 10 _ years. On the other hand, if he never violates his post-release supervision, and gets out at his conditional release date, he will end up serving only the 4 years and 8 months.

All persons convicted of Penal Law felonies must pay a mandatory surcharge of 250 dollars and a crime victim assistance fee of 20 dollars, unless restitution or reparation has been made.
This conviction subjects the defendant to the Sex Offender Registration Act. He will also be subject to a 50 dollar sex offender registration fee.
This conviction will require the defendant to give a blood sample for DNA testing to be included in the state DNA identification index and a 50 dollar DNA bank registration fee.