Excessive Sentencing Project - New York

Policies and rulings on lengthy imprisonment terms in New York.

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  • New York has a three-strikes law that mandates indeterminate life sentences upon conviction for a third violent felony.

State Constitution

Art. 1, §5. Bail; fines; punishments; detention of witnesses: Excessive bail shall not be required nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses by unreasonably detained.

Sentencing Statutes

Persistent Violent Felony Offender statute

New York has a statute that mandates minimum indeterminate life sentences for those convicted of their third violent felonies. The minimum time that must be served depends on the severity of the third felony, and ranges from 12-25 years. N.Y. Penal Law §70.08(3). Effective September 1, 2013, the minimum range will shift to 6-25 years. N.Y. Penal Law §70.08 (McKinney).

Statutory sentence appeals

State law permits appellate courts to set aside sentences that are invalid as a matter of law (when the terms of the sentence are not authorized, when the sentence is based upon an erroneous determination that a defendant had a previous conviction, or when probation has been improperly revoked) or “harsh or excessive.” N.Y. Criminal Procedure Law §450.30(1).

Youthful offender statute

Courts are allowed to grant offenders between the ages of 16 and 19 “youthful offender” status, which allows offenders to avoid a criminal conviction on their records and sets lower maximum sentences for certain crimes. Eligible youth must receive youthful offender classification if they were convicted in a local criminal court and have no prior record of criminal or youthful offender convictions. N.Y. Criminal Procedure Law §720.20.

Case Law


To be sentenced as a persistent violent felony offender, the two prior felonies must not have been part of the same event or transaction. People v. Morse, 62 N.Y.2d 205, 223-24 (1984).

Sentences are evaluated under an abuse of discretion standard. People v. Hochberg, 62 A.D.2d 239, 251 (3 Dept. 1978). When evaluating whether a sentence is harsh or excessive, a sentence should not be disturbed without a showing of “extraordinary circumstances.” People v. Mabry, 101 A.D.2d 961, 962 (3 Dept. 1984).

The state’s persistent violent felony offender statute contains no requirement that qualifying convictions result in imprisonment; thus, a defendant may be sentenced as a persistent violent offender even if he received probation for a prior offense. People v. Harrison, 248 A.D.2d 174, 175 (1 Dept. 1998).

The determination of whether a sentence is to be served “at hard labor” or under standard prison employment conditions is a decision for the Department of Corrections, not the trial court. People v. Johnson, 216 A.D.2d 583, 584 (1995).

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The state constitution prohibits punishments that are “grossly disproportionate” to the crime. People v. Broadie, 37 N.Y.2d 100, 111-12 (1975).

The gravity of the offense and gravity of the danger the offender poses to society are key factors in the gross proportionality analysis. Broadie, 37 N.Y.2d at 112. When considering the gravity of the criminal offense, the main concern is the harm the offense causes to society. Id. The reviewing court also considers (1) the crime’s comparative seriousness in light of the punishments for other state crimes and for the same offense in other jurisdictions; as well as (2) the punishment in comparison to the punishment received by any other charged participant. People v. Thompson, 83. N.Y.2d 477, 485 (1994).

A sentence within a valid statutory range is not ordinarily cruel and unusual, regardless of the sentence’s severity. People v. Jones, 39 N.Y.2d 694 (1976) (upholding a sentence of 15 years to life for drug possession when other defendants who were involved in the same drug packaging operation received much lighter sentences; defendant had turned down an offer of a lighter sentence in exchange for a guilty plea to a lesser charge).

Severe Sentences 

Court upheld sentence of 15 years to life for 17-year-old convicted of cocaine distribution. Thompson, 83 N.Y.2d at 482.

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Court upheld sentence of 9 years to life for man convicted of criminal possession of a dangerous weapon under the state’s persistent violent felony offender statute. People v. Ortiz, 254 A.D.2d 27 (1 Dept. 1998).