Pre-sentence Reports in New York
The purpose of a pre-sentence report is to assist the court in determining an appropriate sentence for a person convicted of a crime. It is prepared by the probation department between the time the defendant is convicted and the time the defendant is sentenced.
A pre-sentence investigation and report –unless waived- is required in any case where a person has been convicted of a felony. [CPL § 390.20(1)] A pre-sentence investigation and report is also required-unless waived- where a person is convicted of a misdemeanor and the defendant is to be sentenced to more than ninety days in jail; to consecutive sentences totaling more than ninety days in jail; or to a term of probation. [CPL § 390.20(2)] A judge is not required but may order a pre-sentence investigation and report in any other cases. [CPL§390.20(3)]
A presentence report can be waived by the parties and the court where: the sentence is agreed to by the parties and will equal time served; a sentence a probation has been agreed on by the parties and will be imposed; a pre-sentence report has already been done within the last twelve months; or a sentence of probation has been revoked. [CPL § 390.20(4)(a)(i-iv)] A pre-sentence report cannot be waived if a prison sentence is to be imposed. [CPL §390.20390.20(a)] A court may require a victim impact statement even if the presentence investigation and report is waived. [CPL§320.20(4)(b)]
The presentence investigation and report includes gathering and reporting on: the facts and circumstances of the crime; the defendant’s criminal history, the defendant’s social history, the defendant’s employment history, the defendant’s family situation, the defendant’s economic status; the defendant’s educational background, the defendant’s personal habits; any matter the investigating agency deems relevant to sentencing and any other information requested by the court. [CPL §390.30( 1)] Defense counsel can and generally should submit his own pre-sentence memorandum addressing these same topics and may attach statements of others in support of the facts in his memorandum. [CPL § 390.40(1)]
Continue reading " Pre-sentence Reports in New York " »
A person commits burglary in the first degree if he knowingly enters or remains unlawfully in a dwelling with the intent to commit a crime inside the dwelling and he or another participant in the crime while entering, inside or fleeing from the dwelling: is armed with explosives or a deadly weapon; causes physical injury to a non-participant in the crime; uses or threatens use of a dangerous instrument; or displays what appears to be firearm.[PL§ 140.30(1)-(4) It is an affirmative defense that the firearm was not loaded or not capable of firing a shot capable of causing a serious physical injury. [PL§ 140.30(4)] Burglary in the first degree is a class B violent felony.[PL§140.30]
A person commits arson in the fifth degree if he or she intentionally damages property of another person without their permission by intentionally starting a fire or causing an explosion. [PL§150.01] Arson in the fifth degree is a class A misdemeanor. [PL§150.01] An adult convicted of arson in the fifth degree may be sentenced to a maximum of one year in the local county jail. [PL§ 70.15(1)] He or she can be sentenced to three years probation. [PL§ 65(3)(b)(ii) He or she can receive a split sentence of up to four months in jail and either three years probation or one year conditional discharge. [PL §60.01(2)(d)] He or she may receive a one year conditional discharge.[PL§§ 60.01(2)(a)(i) and 65.05(3)(a)] He or she could possibly receive a unconditional discharge. [PL§§ 60.01(3)(d) and 65.20(1)] He or she can also be fined a maximum of one thousand dollars. [PL §80.05(1)] He or she also may be ordered to pay restitution or a maximum surcharge of one hundred forty five dollars and a crime victim assistance fee of twenty dollars unless restitution or reparation is made [PL §§ 60.27(1), 60.35(1)(6), and (9)]
