The Criminal Case In A Nut Shell: A 9 Part Series, Part 8: Sentencing
If you or a loved one have been charged with a crime, the New York State criminal system can be intimidating. Not only are the New York State Penal Laws unforgiving, the complex judicial system can create its own set of obstacles. To help, The Law Offices of Michael H. Ricca P.C. has created a nine part series to better explain many of the components of a criminal case in New York State. In today’s article, we will be focusing on the sentencing aspect of a criminal trial.
In our last post, Part 7: The Trial, we discussed how a criminal trial works in New York State. This included everything from deciding to have a judge or jury trial to the post-trial motions and proceedings. This pivotal moment is the culmination of all the preceding components of a criminal case. For more information on the events leading up to a criminal trial, visit Part 1: The Stop and Arrest, Part 2: The Arraignment, Part 3: The Preliminary Hearing of Grand Jury Proceedings, Part 4: Appearances and Plea Negotiations, Part 5: Pre-Trial Discovery and Motion Practice, and Part 6: Suppression Hearings.)
If you were convicted of all or some of the criminal charges against you, you will be sentenced in accordance with the law.
Pre-Sentencing Report and Memo:
If you are facing a felony conviction, the Department of Probation is required to prepare a pre-sentence report before you can be sentenced for your conviction. The purpose of this report is to inform the judge about several factors that may influence or mitigate the final sentence. This includes:
- The defendant’s background;
- Potential mitigating circumstances,
- How successful a potential probationary period would be; and
- Any programs that may assist with the defendant’s rehabilitation.
The judge does not have to agree with or follow any of the recommendations contained within the pre-sentence report. If you have been held in jail while awaiting your trial for as long or longer than your potential sentence may be, the pre-sentence report may be waived. It may also be waived if probation is to be imposed.
In support of their views, both the defense and prosecution are also permitted to provide the judge with pre-sentence memos.
Victim Impact Statements:
If you have been convicted of a felony, New York State allows your victims, or their families, to address the court. These impact statements give the victims or their families the chance to demonstrate how the crime has affected their lives.
In general, the defense is given the opportunity to question the victim after they have given their impact statement. The defense may also request an adjournment. This gives them time to submit a written rebuttal. They may also submit written questions to the judge. If the judge approves, they may forward the questions to the victim for response. However, the judge can also decide not to ask the questions submitted by the defense. If the judge does this, they must include their reasoning in the court record.
Victims may decide to forego the impact statement. If they do so, the court will consider this a waiver of their right to make the statement.
After the victim impact statement is given or waived, it is time for the judge to pass down the sentence. Depending on the charges, your prior criminal record, the circumstances of the crime, and other factors, there are several different types of sentences you may receive.
- Fine: A fine is often imposed as an alternative to serving time in jail. It may also be one of the conditions of a conditional discharge, a probation sentence, or in addition to incarceration.
- Restitution: Restitution is separate from an imposed fine. Restitution occurs when a defendant is ordered to compensate the victims or their families for their losses. Restitution is often ordered in combination with probation or a conditional discharge.
- Probation: Probation may be granted in place of a jail sentence. If this occurs, you will be subjected to the supervision of an officer of the Department of Probation for a predetermined number of years. In addition to your supervision, you may also be required to fulfill certain requirements, such as completing a drug rehabilitation program, attending anger management, or paying a fine.
- Imprisonment: Many of the crimes committed in New York State have the potential for jail time. While each type of crime has a different length of potential jail time, if you are convicted of a crime, you run the risk of imprisonment. See the New York State Penal Law, Article 70 for specific sentence lengths and continue reading below to understand the different types of sentences. You can also check out several of our other blogs, where we talk about the consequences of misdemeanors and felonies in New York State.
- Conditional Discharge: A conditional discharge is one that requires you to meet specific conditions in order to maintain your freedom. This may include conditions such as attending a drug rehabilitation program, job training, anger management, or paying restitution or fines. If the conditions of the discharge are not met, the defendant may find himself or herself re-sentenced to incarceration.
- Unconditional Discharge: An unconditional discharge may also be granted. With an unconditional discharge, the defendant is released without having any additional conditions to meet to maintain their freedom.
If the judge sentences you to incarceration, you should be aware of several nuances.
- Indeterminate Sentences: Indeterminate sentences are those that cover a range of time. These sentences will include a minimum and maximum amount of time that must be served before you can be released. For example, you may be given a sentence of 5 to 25 years in prison for a Class B violent felony.
- Determinate Sentences: Determinate sentences are those that have an exact length of time. For example, you may be sentenced to serve 5 years in a state prison.
- Split Sentences: Sometimes referred to as a shock probation, split sentences occur when you are ordered to serve a portion of your sentence in jail and the rest on probation. For example, if you would have received a 3-year sentence, you may be sentenced to 6 months in jail and the remainder of those 3 years on probation. Often, conditions will need to be met in order to remain on probation.
- Concurrent Sentences: If you have been convicted of multiple charges, you may be ordered to serve concurrent sentences. This means the prison terms you have been ordered to serve for each conviction will run at the same time.
- Consecutive Sentences: If you have been convicted of multiple offenses, the judge may deem the crimes so horrible that they order you to serve each term consecutively. This means that you will have to serve each sentence, one after another.
For those who are convicted of a murder or other Class A violent felony, you may be worried about the death penalty. In the State of New York, however, the State Court of Appeals has deemed the death penalty unconstitutional. As a result, New York no longer imposes the death penalty on convicted criminals.
If you or a loved one has been convicted of a crime, the consequences can be devastating. In New York State, a convicted individual has the right to file an appeal. If you would like to learn more about the appeals process, visit our blog next week, where we will explain this topic in depth and conclude our nine part series on the New York State criminal case process.
If you or a loved one has been arrested, contact our
attorneys at The Law Offices of Michael H. Ricca, P.C. at (516) 500-1647 once
you are able to do so for your free telephone consultation or visit us online
at www.NassauCountyTrafficLawyer.com and complete our legal consultation