New York State Sentencing Guide
By Don Murray, Partner in Shalley & Murray
I have had a recent change in thinking about what I used to call my New York Criminal Sentencing Assistant that formerly existed on this page. Initially, I wanted to give people a way to get a "feel" for the sentences that might exist for crimes in New York. I still think this is a good idea, but the plain fact of the matter is, I now believe, that the sentencing rules in New York are simply too cumbersome and too filled with exceptions and variation to make any effort to reduce it to some sort of simple chart impossible, or at least unwise.
And so, rather than attempt to provide the charts and rules with explanations, I thought what I would do is list a number of common situations and give an idea about what the possible sentences might be. It may be that you will find a situation that seems to match the situation you are interested in. Please, as always, confirm anything you believe from reading these pages with an honest to goodness live criminal defense lawyer, and never make any decision in any real criminal case based upon anything you read in these pages (or any other pages on the web). If you are charged with a crime, you have a criminal lawyer who is responsible to be aware of the nuances of your situation, some of which may be different from the general examples I am about to give. Rely on your lawyer.
If you nevertheless want to try to wade through all the New York State sentencing rules, there is an excellent resource of New York State Laws available by clicking here.
Although I have stopped attempting to explain all the nuances of sentencing, a brief word about Youthful Offender is probably still a good idea because it is a very common source of questions.
If a person is charged with a crime in New York, and that person is under 19 years old at the time of the offense, then the person is probably eligible for "Youthful Offender" treatment. Youthful Offender treatment is mandatory for those eligible defendants who are convicted of misdemeanors. Youthful Offender treatment is up to the Judge to grant or withhold for those otherwise eligible defendants convicted of most felonies.
There are two prime benefits of a Youthful Offender finding.
The first benefit of a Youthful Offender finding is that the criminal conviction, as far as New York State is concerned, is wiped away. A person with a Youthful Offender finding is allowed to say that he has never been convicted of a crime if Youthful Offender status is granted.
The second benefit of a Youthful Offender finding is that a totally different sentencing structure applies (and it is a lot better for the person convicted). A person convicted of a felony that carries a mandatory minimum state prison sentence suddenly no longer faces a mandatory minimum state prison sentence. Instead, non jail sentences, including probation, are possible.
Note that Youthful Offender does not automatically mean that there will not be a jail sentence. A person who is found to be a Youthful Offender can be sentenced to a state prison term of up to 1 1/3 to 4 years (although he or she would still not be considered by New York State to have a criminal record).
As a general rule a person can only receive one Youthful Offender finding. Further, certain Family Court adjudications can count as a prior Youthful Offender finding and therefore make someone ineligible for Youthful Offender. For example, a person found responsible for an armed robbery in Family Court at age 14 would be ineligible for Youthful Offender if arrested for a felony at age 17.
It is also important to remember that eligibility for youthful offender is defined as "under 19." This means you are eligible for Youthful Offender status when you are 18.
Misdemeanor sentencing is really pretty simple. There are really only two types of misdemeanors for purposes of sentencing, A and B. (New York also sports "unclassified" misdemeanors, such as Driving While Intoxicated, but unclassified misdemeanors are treated as A misdemeanors).
As a general rule there are no minimum sentences for misdemeanors. The maximum sentence for an A misdemeanor is one year in jail. The maximum sentence for a B misdemeanor is 90 days in jail.
Commonly Charged A Misdemeanors for which the maximum sentence will be one year:
- Petit Larceny (shoplifting) PL Section 155.25
- Criminal Possession of a Controlled Substance in the Seventh Degree, PL Section 220.03
- Driving While Intoxicated, VTL 1192 (DWI is an incredibly complex statute and the potential consequences of a DWI conviction range far beyond jail time. You must consult with a criminal lawyer to review all of the particular nuances in your particular situation.)
- Theft of Services (jumping turnstyle in subway, for example)
- Assault in the Third Degree
- Criminal Mischief (breaking someone else's stuff)
- Criminal Possession of a Weapon in the Fourth Degree (for this misdemeanor, think num chuks at the airport or gravity knife in your pocket. Guns will usually be felonies)
Common B Misdemeanors for which the maximum penalty will be 90 days in jail
- Criminal Possession of Marijuana in the Fifth Degree, PL 221.10
- Patronizing a Prostitute
Commonly Charged Felonies
Robbery in the First Degree (Penal Law Section 165.15)
Robbery in the First Degree is a class B violent felony offense in New York. If a person is convicted of robbery in the first degree, he must receive a minimum of at least 5 years in state prison, unless he is under 19 at the time of the offense and receives "youthful offender" treatment. Other than that, a person convicted of robbery in the first degree must go to prison for at least 5 years. No probation. No slap on the wrist. No programs. Just state prison. This is true even if the person has no criminal record, spends his life doing community service and other good works, and has saved hundreds of people from drowning as a lifeguard. There are no exceptions (other than possibly the age exception). Further, upon conviction for robbery in the first degree, a person faces up to 25 years. That means that the sentencing judge could, if he or she so chose, sentence the person (even the person with no criminal history) up to 25 years. Robbery in the first degree is one of the most serious crimes on the books in the New York State.
Robbery in the Second Degree
Robbery in the Second Degree is a Class C violent felony offense in New York. If a person is convicted of robbery in the second degree, he must receive a minimum of at least 3 1/2 years in state prison (unless eligible for Youthful Offender). Unless the person is eligible for and the judge and prosecutor are persuaded to grant Youthful Offender status, there is no better alternative for sentencing purposes than the 3 1/2 year mandatory minimum sentence. Probation is not an option. There are no programs. No slap on the wrist. Just state prison. This is true even if the person has never been arrested before, has a straight A average in school, and sings in the Church choir. Absent Youthful Offender status, which is discretionary, the only alternative is state prison. The most commonly charged form of robbery in the second degree is what might be described as "group robbery" where a group of people are charged with working together to rob one or more people. For this reason, robbery in the second degree is quite often the teenage robbery charge. Imagine a group of teenagers. Then imagine some members of the group taking a cell phone from someone. The victim tells the police that the "they" robbed him. Everyone in the group is arrested for robbery in the second degree.
Robbery in the Third Degree
Strangely, Robbery in the Third Degree is a D NON-VIOLENT felony. That's right. There is a robbery charge in New York State that is considered non-violent. Non-violent robbery sounds like something of a contradiction, but that's the law for you sometimes. There is no mandatory minimum for a D non-violent felony, but the maximum is 2 1/3 to 7 years in state prison. Realize that 2 1/3 to 7 is considered one sentence. It is not a range of possible sentences. Non-violent state prison sentences in New York are usually bundled as ranges. The first number is the amount of time that must be served before the person is eligible for parole. The second number is the absolute maximum time that the person could serve if he never makes parole.
Burglary in the Second Degree
In contrast to the "non-violent robbery" of robbery in the third degree, Burglary in the Second degree is considered to be a C VIOLENT felony, even though burglary in the second degree does not require that any actual violence be committed. Burglary in the second degree is residential burglary that is committed if someone burglarizes a home when nobody is around. Nevertheless, for sentencing purposes, burglary in the second degree is treated as a violent felony offense and is therefore an extremely serious charge. For a person with no criminal convictions the minimum is 3 1/2 years in state prison. The maximum is 15 years. For those with prior felony convictions within the last 10 years, the minimums are even higher. Burglary in the second is at the same time a common charge and a very serious felony charge.
Burglary in the Third Degree
Burglary in the Third Degree (burglary of a building - not a dwelling) is a D non violent felony. There is no mandatory minimum for a person with no criminal history and the maximum sentence is 2 1/3 to 7 years for someone with no criminal history. Sentences for certain non-violent felonies like this are given in ranges. The first number of the range is the amount of time the person does before eligible for parole. The second number is the maximum time the person could spend in prison on the matter if he doesn't get paroled or is violated on parole and returned to prison.
Assault in the First Degree
Assault offenses are graded generally according to the seriousness of the injuries caused. Assault in the First Degree is one of the most serious charges on the books in New York, a Class B violent felony. The level of injury required to make out assault in the first degree is so severe that this charge will often be made along with attempted murder. Interestingly, attempted murder is the SAME level of offense as Assault in the First Degree. Therefore, if you ever read about a case in which someone is found NOT GUILTY of attempted murder but found GUILTY of assault by a jury, know that it makes no difference at all. I have seen press responses to jury verdicts in which the gist of the article is some sort of disappointment that the defendant was acquitted of attempted murder and only convicted of assault one. This is ludicrous. The defendant faces the exact same sentence. And that sentence is (for a person with no criminal history): a mandatory minimum of 5 years and a maximum of up to 25 years.
Assault in the Second Degree
Assault in the Second Degree is a D violent felony. In some situations there can be no mandatory minimum and in others there is a mandatory minimum of 2 years with a maximum of 7 (for a person with no criminal history).
Gang Assault in the First Degree
Gang assault is one of the most stupidly named offenses in New York State because the offense has NOTHING to do with "gangs". It should have been named "Group Assault" because the crime only requires that the participants number 3 or more, not that they have any affiliation with a gang. This crime is another B violent felony offense, making it one of the most serious charges out there, on a par with Attempted Murder. A person with no criminal history faces a mandatory minimum of 5 years and a maximum of 25 years.
Gang Assault in the Second Degree
See Gang Assault One above for a discussion of why this is a poorly named crime. Gang Assault in the Second Degree is a C violent felony offense. A person with no criminal history faces a mandatory minimum of 3 1/2 years and a maximum of 15 years.
Criminal Possession of a Controlled Substance in the Third Degree
Criminal possession of a controlled substance in the third degree is a B drug felony offense. A person with no criminal history faces no mandatory minimum in certain circumstances or a 1 year mandatory minimum in others. The maximum is 9 years. Drug Court might be another possibility here, which could ultimately result in the outright dismissal of the charges.
Criminal Sale of a Controlled Substance in the Third Degree
Criminal sale of a controlled substance in the third degree is a B drug felony offense. A person with no criminal history faces no mandatory minimum in certain circumstances or a 1 year mandatory minimum in others. The maximum is 9 years. Drug Court might be another possibility here, which could ultimately result in the outright dismissal of the charges.
Criminal Possession of a Weapon in the Second Degree
Criminal possession of a weapon in the second degree is a C violent felony offense. For a person with no criminal history, the mandatory minimum is 3 1/2 years state prison and the maximum is 15 years state prison.
Criminal Possession of a Weapon in the Third Degree
Criminal possession of a weapon in the third degree is a D violent felony offense. For a person with no criminal history, the mandatory minimum is 2 years and the maximum is 7 years.
Grand Larceny in the Fourth Degree
Grand larceny in the fourth degree is an E non-violent felony. For a person with no criminal history, there is no mandatory minimum, and the maximum is 1 1/3 - 4 years. Remember that the first number of the range is the amount of time before the person is eligible for parole and the second number of the range is the most time the person could do if never released on parole or returned to prison for violating parole.
A Couple Important Things to Remember Before Reading On...
What You are Charged With, Isn't Always How it Ends Up
People looking for answers about what a person "faces" who is charged with a particular offense often forget about the possibility of negotiations. For example, if you read below, you will learn that a person charged with Robbery in the Second Degree (who is over 19 years old) faces a mandatory minimum prison sentence of 3 1/2 years, even if that person has no prior criminal history and has a thousand reference letters from people whose lives he has saved. People hearing that there is a mandatory minimum of 3 1/2 years in this situation are often immediately horrified and concerned.
You must understand, however, that there can be a difference between the offense that is charged, and the offense (if any) that a person is convicted of. Simply being accused of robbery of second degree, for example, doesn't mean that the Government can't offer to resolve the case with some different, lesser charge, that carries a lesser minimum sentence or even no minimum prison sentence at all. In fact, especially for those with no prior criminal history, there is often "leeway" with respect to negotiations that will provide a means to settle a case for less (sometimes even substantially less) than the mandatory minimum of the top charge a person is arrested for.
Curiosity about mandatory minimum sentences on the top count is understandable of course, because it is necessary in order to fully grasp the gravity of a particular situation. Especially in those situations where an accused is considering going to trial, it is important to know the stakes. But mandatory minimums on top charges are not the end of the story. As usual, things are often a bit more complex.
Worst Case Scenarios Aren't Often Productive Things to Worry About
Similarly, people often want to know the worst case scenario. I often respond to people that the worst case scenario is that you get hit by a truck after you leave my office while you are crossing the street. Worst case scenarios are not always good guides to how you should conduct yourself. If you were worried about the possibility of dying in a fiery car crash, you would never leave your house and most people choose not to live their lives enslaved to concerns about worst case scenarios. I have this discussion with people before telling them the maximum prison times they face upon conviction because the answers are staggering for most people.
Most people's impression of the criminal justice system is that the criminal justice system does nothing but give people slaps on the wrist in a revolving door of early release and probation sentences. The truth is exactly the opposite. Never been arrested before and accused of robbing someone of a cell phone by displaying a knife? You are facing 25 years in prison. A few teenagers surround another kid, push him down and take his lunch money? Each one of them faces 15 years in prison. Take a stick of gum from the local candy store? You face one year at Rikers Island.
Pretty staggering right? But those are the maximum sentences in those situations. Knowing that, however, doesn't really provide enough useful information to act on it, however. The truth is that in none of those situations (as long as we are talking about New York City) is any one of the people involved likely to get anywhere close to those sentences even if they went to trial, lost, and cursed at the judge at sentencing.
Knowing the maximum, especially for those with no prior criminal history, doesn't really provide much useful information. Although it is certainly worth knowing out of a sense of curiosity, the likelihood of ever seeing such a sentence for a person with no criminal history is so remote as to be barely a consideration - much like the fear of dying in a fiery car crash should not keep us from driving to work in the morning. I often tell clients who begin to obsess needlessly about maximum sentences possible that it would be more useful to discuss how we will spend our lottery winnings than to discuss maximum sentences.
Of course maximum sentences are never mathematically out of the question, and might even become a serious consideration in some cases (homicide cases and certain sex cases for example), by and large the maximum possible sentence is something of a bogeyman.
Therefore, as you read on, do not despair if the situation you are curious about suggests that there is a mandatory minimum prison sentence or that the maximum is some outlandishly large number.
Before you lose all hope, discuss your situation with a real criminal defense lawyer. Feel free to call Shalley and Murray at 718-268-2171 for more information about sentencing in New York Criminal cases or to schedule your free consultation with a New York criminal defense lawyer from Shalley & Murray.