In cases where the crime does not specify an exact penalty, there must be a sentencing hearing. All felony criminal convictions in the state of New York require sentencing hearings. These are separate hearings and often take place weeks after the trial ends or the plea agreement has been reached. Their purpose is to render punishment. The judge, after considering the attorneys’ arguments (from both the defense and the prosecution) determines the sentence and has wide latitude in making these decisions. In misdemeanor cases, the penalties are pre-determined to some extent. A level misdemeanors and unclassified crimes like DWI carry a maximum sentence of 1 year while B level misdemeanors have a maximum sentence of 90 days. These criminal cases usually do not require separate hearings for sentencing as they are often levied immediately upon conviction or submission of a plea. For the purposes of this discussion, the term “sentencing” relates to crimes committed by adults. Those who are under 19 years of age at the time of the commission of the crime may be sentenced as Youthful Offenders and those cases are looked at individually in terms of sentencing, and the procedure is different than what is explained here. Our criminal lawyers incur situations in which to advocate for youthful offender status where the court might not otherwise treat the case as such.
The sentencing phase of any criminal procedure is one of the most important stages in any case. Only in the rare event where a defendant decides to represent him or herself, most people charged with a felony crime obtain counsel immediately. This is not always true of those who are charged with misdemeanor or even some minor felony crimes.
In New York, a large number of cases are settled at the arraignment stage, which in some cases is the official beginning where formal charges are filed. Prosecutors bring forth their charges in front of a Judge and the defendant enters a plea.
Many people are under the false perception that by entering a guilty plea at this stage (or plea bargaining their case) it saves them time and money in the long run and may even be looked upon favorably by the judge, who may then act more leniently.
The truth is that by entering a guilty plea after having bargained with the prosecution, you can find yourself enmeshed in future legal difficulties. This has to do with the fact that the details are often lost on an uninformed public who may not fully understand the ramifications of their decisions. It is like the saying, “the devil is in the details.”
Often you will hear people say, “I just paid a fine and it was over with.” Of what crime were they actually charged and convicted? How does the conviction affect their social life or career? Essentially, how does it impact one's future? Will your professional license be compromised in any way? Your case may not actually be over with, but that information was lost on you during the arraignment process.
While it is imperative in felony charges to hire an attorney immediately, it is wise not to even go to arraignment without counsel. An attorney can give you all the information at the beginning, from the details of the charge, the court process, the likelihood of a successful prosecution (why plead guilty to something you may not end up being prosecuted for?), to potential sentences, time frames, etc. so that you can make the best decision for now and your future.
Executive Order #10 established a Commission on sentencing reform and in 2009 this body issued its report on its findings. It was significant if only because it acknowledged the confusing state of sentencing in New York courts. It also helped to establish a permanent Commission on Sentencing in 2010 which now acts as an advisory panel to the Chief Judge.
The U.S. had a different experience in the 2005 case of U.S. v Booker. This Wisconsin case went to federal appeal and it was determined that sentences must be made on facts that were proven beyond a reasonable doubt and not on a preponderance of evidence as had been the case. For Booker, this appeal did not necessary help his sentence, which was ultimately reduced by only 3 years, but it also brought to light disparities in federal sentencing and urged Judges to adhere to federal sentencing guidelines.
The penalties for felony-level crimes in New York can be very complicated. This is not only because of challenging guideline information but also because there are a number of legal designations for certain defendants that potentially affects their sentence.
These designations include, but are not limited to: predicate felon status, violent predicate felons, mandatory persistent felons and discretionary persistent status. There are also specific sentencing guidelines for drug possession and sales. Further complicating matters is the fact that there are various levels of felonies and whether or not violence was involved in the commission of the crime.
All sentences include one or more of these options in combination:
These options can be further broken down into types of sentences depending upon the crime:
• Determinate sentences-these are exact time frames and the time must be completely served before the defendant can be released from prison or jail.
• Indeterminate sentences-these sentences include the phrase “not more than” or “not less than.”
• Flat sentence-having no minimum or maximum time frame.
• Presumptive sentences-specify an average time frame.
• Deferred sentences –to be served at a later time.
• Suspended sentences – postponement of a sentence as long as no other crimes are committed by the defendant during a period of probation.
• Concurrent sentences-the time to be served is compacted into one time frame regardless of how many convictions were sustained. For example, if a defendant received 5 years for burglary and 5 years for fraud, the Judge can rule that the defendant only serve a total of 5 years.
• Consecutive sentences- the Judge can also rule that the defendant serve each sentence back to back and not concurrently, thus make two 5 year terms a total of 10 years.
Successful defenses in the case of sentencing are often about a strong offense. Though there are sentencing guidelines that judges are obligated to consider, the fact is they don’t have to follow them. Sentencing in general is very much open to a judge’s discretion and takes into consideration many factors such as: criminal history of the defendant, special circumstances, severity of the crime, character of the defendant and victim testimony.
Criminal defense attorneys appear in front of judges all the time. They have a type of working relationship and just like any work situation, attorneys can and do make evaluations as to how judges perform and this can be very beneficial to their clients. Some Judges look more favorably on some types of defendants, even though this is not supposed to factor into judicial proceedings. Judges are human though and often quite predictable.
This, in part, explains the lack of uniformity in sentencing. A sentencing proceeding for two distinct, yet similarly situated defendants, might be handled more leniently by one Judge than another. It is in these instances where an attorney’s experience can prove to be invaluable, if not immeasurable.
In serious felony cases, where pre-sentence reports are part of the proceeding, you need to have an attorney who will present your own pre-sentence report. Essentially, this means questioning and, in some cases, objecting to aspects of the report prepared by the Probation Department as to inaccuracies, misrepresentations and errors. At sentencing, both prosecution and defense have the opportunity to present evidence and actual testimony. If the judge is persuaded that the pre-sentence report is flawed, that portion of the report can be stricken and not used against you for purposes of sentencing. This is a pro-active approach and is necessary to ensure that you are not over-sentenced or otherwise treated unfairly during this process.
Sentencing procedure for New York and California state criminal cases and Federal sentencing differs in many ways. But one observation is worth noting. In Federal courts across the United States with regard to sentencing there is wide disparity in outcomes despite similarities in the federal crimes and defendants being sentenced.
New York State has taken steps since 1995 to bring sentences into some form of alignment to avoid situations where a serious offender is “let off” by one Judge with probation while another defendant is given decades in prison for the same offense. Part of this effort in New York was motivated by a federal grant which gave money to states for sentencing reform.
The goals of federal sentencing are five-fold:
• Deterrence-designed to prevent others from committing similar offenses.
• Rehabilitation- a focus on a positive impact on offenders such as in drug and alcohol cases.
• Incapacitation-incarceration to prevent future offenses.
• Restoration-designed to make the victim and the offender whole again by focusing on their personal needs.
New York’s sentencing goals do not include restoration and they have a more traditional approach to sentencing in general. Restoration involves more personal responsibility by all of the stakeholders to include the immediate community, because crime usually impacts the community in which it occurs.
Absent the entering of an appeal, the sentencing phase comes after a verdict has been rendered either by a Judge or a jury, or if there has been a plea bargain.
In capital cases, a jury can sentence a defendant. However, if the Judge determines that the punishment (sentence) does not fit the crime, or vice versa, the Judge can overturn their sentence.
At the point of delivery of the verdict, the defendant can be released on his or her own recognizance (as in the case of minor misdemeanors), on bond, or immediately remanded to jail.
A sentencing date is then set. In misdemeanor cases, a pre-sentence report is not required but may be requested by the Judge. In felony cases, a pre-sentence report is mandatory. There are some circumstances, though few, where with the judge’s agreement, this report can be waived. These reports are done by the Probation Department.
The defendant is interviewed and a victim impact statement is obtained. In the event the victim is deceased, the impact statement is provided by the family. These reports contain the circumstances of the crime, the defendant’s history, his or her social and economic status, education, family information, personal habits, physical and mental condition. This report is to be fair and impartial and based on facts. It recommends a sentence, but does not specify a number of years.
The time between the verdict and the sentencing hearing can be lengthy, and in those cases the defendant can be placed on Interim Probation with terms that must be met. The pre-sentence report, in those cases, then also includes information about the defendant’s actions during that period of time.
This report usually is submitted to the court in advance of the sentencing hearing for the Judge’s review. The prosecutor and the defense may also submit sentencing memoranda. This is information that either side believes is relevant and the Judge should know before a sentence is imposed.
At the sentencing hearing, the Judge hears oral arguments from the prosecution, the defense, and the victim or the victim’s family before a sentence is imposed.