Section 1.00 Short title

 This chapter shall be known as the "Penal Law."
 

Section 1.05 General purposes

 The general purposes of the provisions of this chapter are:

 1. To proscribe conduct which unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests;

 2. To give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction;

 3. To define the act or omission and the accompanying mental state which constitute each offense;

 4. To differentiate on reasonable grounds between serious and minor offenses and to prescribe proportionate penalties therefore;

 5. To provide for an appropriate public response to particular offenses, including consideration of the consequences of the offense for the victim, including the victim's family, and the community;  and

 6. To insure the public safety by preventing the commission of offenses through the deterrent influence of the sentences authorized, the rehabilitation of those convicted, and their confinement when required in the interests of public protection.

Section 5.00 Penal law not strictly construed

 The general rule that a penal statute is to be strictly construed does not apply to this chapter, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law.
 

Section 5.05 Application of chapter to offenses committed before and after enactment

 1. The provisions of this chapter shall govern the construction of and punishment for any offense defined in this chapter and committed after the effective date hereof, as well as the construction and application of any defense to a prosecution for such an offense.

 2. Unless otherwise expressly provided, or unless the context otherwise requires, the provisions of this chapter shall govern the construction of and punishment for any offense defined outside of this chapter and committed after the effective date thereof, as well as the construction and application of any defense to a prosecution for such an offense.

 3. The provisions of this chapter do not apply to or govern the construction of and punishment for any offense committed prior to the effective date of this chapter, or the construction and application of any defense to a prosecution for such an offense.  Such an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this chapter had not been enacted.
 

Section 5.10 Other limitations on applicability of this chapter

 1. Except as otherwise provided, the procedure governing the accusation, prosecution, conviction and punishment of offenders and offenses is not regulated by this chapter but by the criminal procedure law.

 2. This chapter does not affect any power conferred by law upon any court-martial or other military authority or officer to prosecute and punish conduct and offenders violating military codes or laws.

 3. This chapter does not bar, suspend, or otherwise affect any right or liability to damages, penalty, forfeiture or other remedy authorized by law to be recovered or enforced in a civil action, regardless of whether the conduct involved in such civil action constitutes an offense defined in this chapter.

 4. Sections 120.45, 120.50, 120.55 and 120.60 and section 240.25, subdivisions two and three of section 240.26, and sections 240.70 and 240.71 of this chapter (a) do not apply to conduct which is otherwise lawful under the provisions of the National Labor Relations Act as amended, the National Railway Labor Act as amended, or the Federal Employment Labor Management Act as amended, and (b) do not bar any conduct, including, but not limited to, peaceful picketing or other peaceful demonstration, protected from legal prohibition by the federal and state constitutions.

Section 10.00 Definitions of terms of general use in this chapter

 Except where different meanings are expressly specified in subsequent provisions of this chapter, the following terms have the following meanings:

 1. "Offense" means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same.

 2. "Traffic infraction" means any offense defined as "traffic infraction" by section one hundred fifty-five of the vehicle and traffic law.

 3. "Violation" means an offense, other than a "traffic infraction," for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed.

 4. "Misdemeanor" means an offense, other than a "traffic infraction," for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed.

 5. "Felony" means an offense for which a sentence to a term of imprisonment in excess of one year may be imposed.

 6. "Crime" means a misdemeanor or a felony.

 7. "Person" means a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.

 8. "Possess" means to have physical possession or otherwise to exercise dominion or control over tangible property.

 9. "Physical injury" means impairment of physical condition or substantial pain.

 10. "Serious physical injury" means physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

 11. "Deadly physical force" means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.

 12. "Deadly weapon" means any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, or metal knuckles.

 13. "Dangerous instrument" means any instrument, article or substance, including a "vehicle" as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.

 14. "Vehicle" means a "motor vehicle", "trailer" or "semi-trailer," as defined in the vehicle and traffic law, any snowmobile as defined in the parks and recreation law, any aircraft, or any vessel equipped for propulsion by mechanical means or by sail.

 15. "Public servant" means (a) any public officer or employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state, or (b) any person exercising the functions of any such public officer or employee.  The term public servant includes a person who has been elected or designated to become a public servant.

 16. "Juror" means any person who is a member of any jury, including a grand jury, impaneled by any court in this state or by any public servant authorized by law to impanel a jury.  The term juror also includes a person who has been drawn or summoned to attend as a prospective juror.

 17. "Benefit" means any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary.

 18. "Juvenile offender" means (1) a person thirteen years old who is criminally responsible for acts constituting murder in the second degree as defined in subdivisions one and two of section 125.25 of this chapter;  and (2) a person thirteen, fourteen or fifteen years of age is criminally responsible for acts constituting murder in the second degree as defined in subdivision one and two of section 125.25 and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible; and a person fourteen or fifteen years of age is criminally responsible for acts constituting the crimes defined in section 135.25 (kidnapping in the first degree); 150.20 (arson in the first degree);  subdivisions one and two of section 120.10 (assault in the first degree);  125.20 (manslaughter in the first degree);  subdivisions one and two of section 130.35 (rape in the first degree);  subdivisions one and two of section 130.50 (sodomy in the first degree);  130.70 (aggravated sexual abuse);  140.30 (burglary in the first degree);  subdivision one of section 140.25 (burglary in the second degree); 150.15 (arson in the second degree);  160.15 (robbery in the first degree);  or subdivision two of section 160.10 (robbery in the second degree) of this chapter;   subdivision four of section 265.02 of this chapter, where such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of this chapter;  or section 265.03 of this chapter, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of this chapter;  or defined in this chapter as an attempt to commit murder in the second degree or kidnapping in the first degree.

19. For the purposes of section 260.30 and 120.01 of this chapter the term "child day care provider" shall be defined as provided for in section three hundred ninety of the social services law.


20. For purposes of sections 120.13, 120.18, 125.11, 125.21 and 125.22 of this chapter, the term "peace officer" means a peace officer as defined in subdivision one, two, three, four, six, twelve, thirteen, fifteen, sixteen, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-three, twenty-three-a, twenty-four, twenty-five, twenty-six, twenty-eight, twenty- nine, thirty, thirty-one, thirty-two, thirty-four, thirty-five, thirty-six, forty-three, forty-five, forty-seven, forty-eight, forty-nine, fifty-one, fifty-two, fifty-eight, sixty-one, as added by chapter two hundred fifty-seven of the laws of nineteen hundred ninety-two, sixty-one, as added by chapter three hundred twenty-one of the laws of nineteen hundred ninety-two, sixty-two, as added by chapter two hundred four of the laws of nineteen hundred ninety-three, sixty-two, as added by chapter six hundred eighty-seven of the laws of nineteen hundred ninety-three, sixty-three, as amended by chapter six hundred thirty-eight of the laws of two thousand three, sixty-four, sixty-five, sixty-eight, as added by chapter one hundred sixty-eight of the laws of two thousand, sixty-eight, as added by chapter three hundred eighty-one of the laws of two thousand, seventy, seventy-one, seventy-four, as added by chapter five hundred forty-eight of the laws of two thousand one, seventy-five, as added by chapter three hundred twenty-one of the laws of two thousand two, seventy-five, as added by chapter six hundred twenty-three of the laws of two thousand two, seventy-seven, as added by chapter three hundred sixty-seven of the laws of two thousand four, seventy-eight or seventy-nine, as added by chapter two hundred forty-one of the laws of two thousand four, of section 2.10 of the criminal procedure law, as well as any federal law enforcement officer defined in section 2.15 of the criminal procedure law.

Section 15.00 Culpability;  definitions of terms

 The following definitions are applicable to this chapter:

 1. "Act" means a bodily movement.

 2. "Voluntary act" means a bodily movement performed consciously as a result of effort or determination, and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it.

 3.  "Omission" means a failure to perform an act as to which a duty of performance is imposed by law.

 4. "Conduct" means an act or omission and its accompanying mental state.

 5. "To act" means either to perform an act or to omit to perform an act.

 6. "Culpable mental state" means "intentionally" or "knowingly" or "recklessly" or with "criminal negligence," as these terms are defined in section 15.05.
 

Section 15.05 Culpability;  definitions of culpable mental states

 The following definitions are applicable to this chapter:

 1. "Intentionally."  A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

 2. "Knowingly."  A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.

 3. "Recklessly."  A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.  The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.  A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

 4. "Criminal negligence."  A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists.  The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
 

Section 15.10 Requirements for criminal liability in general and for offenses of strict liability and mental culpability

 The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.  If such conduct is all that is required for commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, such offense is one of "strict liability."  If a culpable mental state on the part of the actor is required with respect to every material element of an offense, such offense is one of "mental culpability."
 

Section 15.15 Construction of statutes with respect to culpability requirements

 1. When the commission of an offense defined in this chapter, or some element of an offense, requires a particular culpable mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms "intentionally," "knowingly," "recklessly" or "criminal negligence," or by use of terms, such as "with intent to defraud" and "knowing it to be false," describing a specific kind of intent or knowledge.  When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears.

 2. Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state.  A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability.  This subdivision applies to offenses defined both in and outside this chapter.
 

Section 15.20 Effect of ignorance or mistake upon liability

 1. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless:

  (a) Such factual mistake negatives the culpable mental state required for the commission of an offense;  or

  (b) The statute defining the offense or a statute related thereto expressly provides that such factual mistake constitutes a defense or exemption;  or

  (c) Such factual mistake is of a kind that supports a defense of justification as defined in article thirty-five of this chapter.

 2. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment, or (b) an administrative order or grant of permission, or (c) a judicial decision of a state or federal court, or (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.

 3. Notwithstanding the use of the term "knowingly" in any provision of this chapter defining an offense in which the age of a child is an element thereof, knowledge by the defendant of the age of such child is not an element of any such offense and it is not, unless expressly so provided, a defense to a prosecution therefor that the defendant did not know the age of the child or believed such age to be the same as or greater than that specified in the statute.

 4. Notwithstanding the use of the term "knowingly" in any provision of this chapter defining an offense in which the aggregate weight of a controlled substance or marihuana is an element, knowledge by the defendant of the aggregate weight of such controlled substance or marihuana is not an element of any such offense and it is not, unless expressly so provided, a defense to a prosecution therefor that the defendant did not know the aggregate weight of the controlled substance or marihuana.

Section 15.25 Effect of intoxication upon liability

 Intoxication is not, as such, a defense to a criminal charge;  but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged.

Section 20.00 Criminal liability for conduct of another

 When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.

 Section 20.05 Criminal liability for conduct of another;  no defense

 In any prosecution for an offense in which the criminal liability of the defendant is based upon the conduct of another person pursuant to section 20.00, it is no defense that:

 1. Such other person is not guilty of the offense in question owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the conduct in question or of the defendant's criminal purpose or to other factors precluding the mental state required for the commission of the offense in question;  or

 2. Such other person has not been prosecuted for or convicted of any offense based upon the conduct in question, or has previously been acquitted thereof, or has legal immunity from prosecution therefor;  or

 3. The offense in question, as defined, can be committed only by a particular class or classes of persons, and the defendant, not belonging to such class or classes, is for that reason legally incapable of committing the offense in an individual capacity.
 

Section 20.10 Criminal liability for conduct of another;  exemption

 Notwithstanding the provisions of sections 20.00 and 20.05, a person is not criminally liable for conduct of another person constituting an offense when his own conduct, though causing or aiding the commission of such offense, is of a kind that is necessarily incidental thereto.  If such conduct constitutes a related but separate offense upon the part of the actor, he is liable for that offense only and not for the conduct or offense committed by the other person.
 

Section 20.15 Convictions for different degrees of offense

 Except as otherwise expressly provided in this chapter, when, pursuant to section 20.00, two or more persons are criminally liable for an offense which is divided into degrees, each person is guilty of such degree as is compatible with his own culpable mental state and with his own accountability for an aggravating fact or circumstance.
 

Section 20.20 Criminal liability of corporations

 1. As used in this section:

  (a) "Agent" means any director, officer or employee of a corporation, or any other person who is authorized to act in behalf of the corporation.

  (b) "High managerial agent" means an officer of a corporation or any other agent in a position of comparable authority with respect to the formulation of corporate policy or the supervision in a managerial capacity of subordinate employees.

 2. A corporation is guilty of an offense when:

  (a) The conduct constituting the offense consists of an omission to discharge a specific duty of affirmative performance imposed on corporations by law;  or

  (b) The conduct constituting the offense is engaged in, authorized, solicited, requested, commanded, or recklessly tolerated by the board of directors or by a high managerial agent acting within the scope of his employment and in behalf of the corporation;  or

  (c) The conduct constituting the offense is engaged in by an agent of the corporation while acting within the scope of his employment and in behalf of the corporation, and the offense is (i) a misdemeanor or a violation, (ii) one defined by a statute which clearly indicates a legislative intent to impose such criminal liability on a corporation, or (iii) any offense set forth in title twenty-seven of article seventy-one of the environmental conservation law.
 

Section 20.25 Criminal liability of an individual for corporate conduct

  A person is criminally liable for conduct constituting an offense which he performs or causes to be performed in the name of or in behalf of a corporation to the same extent as if such conduct were performed in his own name or behalf.

Section 25.00 Defenses;  burden of proof

 1. When a "defense," other than an "affirmative defense," defined by statute is raised at a trial, the people have the burden of disproving such defense beyond a reasonable doubt.

 2. When a defense declared by statute to be an "affirmative defense" is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.

Section 30.00 Infancy

 1. Except as provided in subdivision two of this section, a person less than sixteen years old is not criminally responsible for conduct.

 2. A person thirteen, fourteen or fifteen years of age is criminally responsible for acts constituting murder in the second degree as defined in subdivisions one and two of section 125.25 and in subdivision three of such section provided that the underlying crime for the murder charge is one for which such person is criminally responsible;  and a person fourteen or fifteen years of age is criminally responsible for acts constituting the crimes defined in section 135.25 (kidnapping in the first degree);  150.20 (arson in the first degree);  subdivisions one and two of section 120.10 (assault in the first degree);  125.20 (manslaughter in the first degree);  subdivisions one and two of section 130.35 (rape in the first degree);  subdivisions one and two of section 130.50 (criminal sexual act in the first degree);  130.70 (aggravated sexual abuse);  140.30 (burglary in the first degree);  subdivision one of section 140.25 (burglary in the second degree);  150.15 (arson in the second degree); 160.15 (robbery in the first degree) or subdivision two of section 160.10 (robbery in the second degree) of this chapter;   subdivision four of section 265.02 of this chapter, where such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of this chapter, or section 265.03 of this chapter, where such machine gun or such firearm is possessed on school grounds, as that phrase is defined in subdivision fourteen of section 220.00 of this chapter;  or defined in this chapter as an attempt to commit murder in the second degree or kidnapping in the first degree.

 3. In any prosecution for an offense, lack of criminal responsibility by reason of infancy, as defined in this section, is a defense.

Section 35.00 Justification;  a defense

 In any prosecution for an offense, justification, as defined in sections 35.05 through 35.30, is a defense.
 

Section 35.05 Justification;  generally

 Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when:

 1. Such conduct is required or authorized by law or by a judicial decree, or is performed by a public servant in the reasonable exercise of his official powers, duties or functions;  or

 2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.  The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.  Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.
 

Section 35.10 Justification;  use of physical force generally

 The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:

 1. A parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one or an incompetent person, and a teacher or other person entrusted with the care and supervision of a person under the age of twenty-one for a special purpose, may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.

 2. A warden or other authorized official of a jail, prison or correctional institution may, in order to maintain order and discipline, use such physical force as is authorized by the correction law.

 3. A person responsible for the maintenance of order in a common carrier of passengers, or a person acting under his direction, may use physical force when and to the extent that he reasonably believes it necessary to maintain order, but he may use deadly physical force only when he reasonably believes it necessary to prevent death or serious physical injury.

 4. A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical injury upon himself may use physical force upon such person to the extent that he reasonably believes it necessary to thwart such result.

5. A duly licensed physician, or a person acting under a physician's direction, may use physical force for the purpose of administering a recognized form of treatment which he or she reasonably believes to be adapted to promoting the physical or mental health of the patient if (a) the treatment is administered with the consent of the patient or, if the patient is under the age of eighteen years or an incompetent person, with the consent of the parent, guardian or other person entrusted with the patient's care and supervision, or (b) the treatment is administered in an emergency when the physician reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

6. A person may, pursuant to the ensuing provisions of this article, use physical force upon another person in self-defense or defense of a third person, or in defense of premises, or in order to prevent larceny of or criminal mischief to property, or in order to effect an arrest or prevent an escape from custody. Whenever a person is authorized by any such provision to use deadly physical force in any given circumstance, nothing contained in any other such provision may be deemed to negate or qualify such authorization.
 

Section 35.15 Justification;  use of physical force in defense of a person

 1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she  reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

  (a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person;  or

  (b) The actor was the initial aggressor;  except that in such case use of  physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force;  or

  (c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

 2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

  (a) The actor reasonably believes that such other person is using or about to use deadly physical force.  Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:

   (i) in his or her dwelling and not the initial aggressor;  or

   (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30;  or

  (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery;  or

  (c) He or she reasonably believes that such other person is committing or attempting  to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.
 

Section 35.20 Justification;  use of physical force in defense of premises and in defense of a person in the course of burglary

1. Any person may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a crime involving damage to premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force if he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of arson.

2. A person in possession or control of any premises, or a person licensed or privileged to be thereon or therein, may use physical force upon another person when he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of a criminal trespass upon such premises. Such person may use any degree of physical force, other than deadly physical force, which he or she reasonably believes to be necessary for such purpose, and may use deadly physical force in order to prevent or terminate the commission or attempted commission of arson, as prescribed in subdivision one, or in the course of a burglary or attempted burglary, as prescribed in subdivision three.

3. A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.

4. As used in this section, the following terms have the following meanings:

(a) The terms "premises," "building" and "dwelling" have the meanings prescribed in 140.00;

(b) Persons "licensed or privileged" to be in buildings or upon other premises include, but are not limited to:

(i) police officers or peace officers acting in the performance of their duties; and

(ii) security personnel or employees of nuclear powered electric generating facilities located within the state who are employed as part of any security plan approved by the federal operating license agencies acting in the performance of their duties at such generating facilities. For purposes of this subparagraph, the term "nuclear powered electric generating facility" shall mean a facility that generates electricity using nuclear power for sale, directly or indirectly, to the public, including the land upon which the facility is located and the safety and security zones as defined under federal regulations.
 

Section 35.25 Justification;  use of physical force to prevent or terminate larceny or criminal mischief

A person may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other person of larceny or of criminal mischief with respect to property other than premises.

Section 35.27 Justification;  use of physical force in resisting arrest prohibited

 A person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a police officer or peace officer.
 

Section 35.30 Justification;  use of physical force in making an arrest or in preventing an escape

 1. A police officer or a peace officer, in the course of effecting or attempting to effect an arrest, or of preventing or attempting to prevent the escape from custody, of a person whom he or she reasonably believes to have committed an offense, may use physical force  when and to the extent he or she reasonably believes such to be necessary to effect the arrest, or to prevent the escape from custody, or in self-defense or to defend a third person from what he or she reasonably believes to be the use or imminent use of physical force; except that deadly physical force may be used for such purposes only when he or she reasonably believes that:

  (a) The offense committed by such person was:

   (i) a felony or an attempt to commit a felony involving the use or attempted use or threatened imminent use of physical force against a person;  or

   (ii) kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such a crime;  or

  (b) The offense committed or attempted by such person was a felony and that, in the course of resisting arrest therefor or attempting to escape from custody, such person is armed with a firearm or deadly weapon;  or

  (c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the police officer or peace officer or another person from what the officer reasonably believes to be the use or imminent use of deadly physical force.

 2. The fact that a police officer or a peace officer is justified in using deadly physical force under circumstances prescribed in paragraphs (a) and (b) of subdivision one does not constitute justification for reckless conduct by such police officer or peace officer amounting to an offense against or with respect to innocent persons whom he or she is not seeking to arrest or retain in custody.

 3. A person who has been directed by a police officer or a peace officer to assist such police officer or peace officer to effect an arrest or to prevent an escape from custody may use physical force, other than deadly physical force, when and to the extent that he reasonably believes such to be necessary to carry out such police officer's or peace officer's direction, unless he or she knows that the arrest or prospective arrest is not or was not authorized and he may use deadly physical force under such circumstances when:

  (a) He reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force;  or

  (b) He is directed or authorized by such police officer or peace officer to use deadly physical force unless he knows that the police officer or peace officer himself is not authorized to use deadly physical force under the circumstances.

 4. A private person acting on his or her own account may use physical force, other than deadly physical force, upon another person when and to the extent that he or she reasonably believes such to be necessary to effect an arrest or to prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense and who in fact has committed such offense;  and he or she may use deadly physical force for such purpose when he or she reasonably believes such to be necessary to:

  (a) Defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force;  or

  (b) Effect the arrest of a person who has committed murder, manslaughter in the first degree, robbery, forcible rape or forcible criminal sexual act and who is in immediate flight therefrom.

 5. A guard, police officer or peace officer who is charged with the duty of guarding prisoners in a detention facility, as that term is defined in section 205.00, or while in transit to or from a detention facility, may use physical force when and to the extent that he or she reasonably believes such to be necessary to prevent the escape of a prisoner from a detention facility or from custody while in transit thereto or therefrom.

Section 40.00 Duress

  1. In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist.

 2. The defense of duress as defined in subdivision one of this section is not available when a person intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.
 

Section 40.05 Entrapment

 In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it.  Inducement or encouragement to commit an offense means active inducement or encouragement.  Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
 

Section 40.10 Renunciation

 1. In any prosecution for an offense, other than an attempt to commit a crime, in which the defendant's guilt depends upon his criminal liability for the conduct of another person pursuant to section 20.00, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof.

 2. In any prosecution for criminal facilitation pursuant to article one hundred fifteen, it is an affirmative defense that, prior to the commission of the felony which he facilitated, the defendant made a substantial effort to prevent the commission of such felony.

 3. In any prosecution pursuant to section 110.00 for an attempt to commit a crime, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant avoided the commission of the crime attempted by abandoning his criminal effort and, if mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.

 4. In any prosecution for criminal solicitation pursuant to article one hundred or for conspiracy pursuant to article one hundred five in which the crime solicited or the crime contemplated by the conspiracy was not in fact committed, it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant prevented the commission of such crime.

 5. A renunciation is not "voluntary and complete" within the meaning of this section if it is motivated in whole or in part by (a) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose, or (b) a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective.
 

Section 40.15 Mental disease or defect

 In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect.  Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either:

 1. The nature and consequences of such conduct;  or

 2. That such conduct was wrong.

Section 55.00 Applicability of article

 The provisions of this article govern the classification and designation of every offense, whether defined within or outside of this chapter.
 

Section 55.05 Classifications of felonies and misdemeanors

 1. Felonies.  Felonies are classified, for the purpose of sentence, into five categories as follows:

  (a) Class A felonies;

  (b) Class B felonies;

  (c) Class C felonies;

  (d) Class D felonies;  and

  (e) Class E felonies.

  Class A felonies are subclassified, for the purpose of sentence, into two categories as follows:  subclass I and subclass II, to be known as class A-I and class A-II felonies, respectively.

 2. Misdemeanors.  Misdemeanors are classified, for the purpose of sentence, into three categories as follows:

  (a) Class A misdemeanors;

  (b) Class B misdemeanors;  and

  (c) Unclassified misdemeanors.
 

Section 55.10 Designation of offenses

 1. Felonies.

  (a) The particular classification or subclassification of each felony defined in this chapter is expressly designated in the section or article defining it.

  (b) Any offense defined outside this chapter which is declared by law to be a felony without specification of the classification thereof, or for which a law outside this chapter provides a sentence to a term of imprisonment in excess of one year, shall be deemed a class E felony.

 2. Misdemeanors.

  (a) Each misdemeanor defined in this chapter is either a class A misdemeanor or a class B misdemeanor, as expressly designated in the section or article defining it.

  (b) Any offense defined outside this chapter which is declared by law to be a misdemeanor without specification of the classification thereof or of the sentence therefor shall be deemed a class A misdemeanor.

  (c) Except as provided in paragraph (b) of subdivision three, where an offense is defined outside this chapter and a sentence to a term of imprisonment in excess of fifteen days but not in excess of one year is provided in the law or ordinance defining it, such offense shall be deemed an unclassified misdemeanor.

 3. Violations.  Every violation defined in this chapter is expressly designated as such.  Any offense defined outside this chapter which is not expressly designated a violation shall be deemed a violation if:

  (a) Notwithstanding any other designation specified in the law or ordinance defining it, a sentence to a term of imprisonment which is not in excess of fifteen days is provided therein, or the only sentence provided therein is a fine;  or
  (b) A sentence to a term of imprisonment in excess of fifteen days is provided for such offense in a law or ordinance enacted prior to the effective  date of this chapter but the offense was not a crime prior to that date.

 4. Traffic infraction.  Notwithstanding any other provision of this section, an offense which is defined as a "traffic infraction" shall not be deemed a violation or a misdemeanor by virtue of the sentence prescribed therefor.

Section 60.00 Applicability of provisions

 1. The sentences prescribed by this article shall apply in the case of every offense, whether defined within or outside of this chapter.

 2. The sole provision of this article that shall apply in the case of an offense committed by a juvenile offender is section 60.10 of this article and no other provisions of this article shall be deemed or construed to apply in any such case.
 

Section 60.01 Authorized dispositions;  generally

 1. Applicability.  Except as otherwise specified in this article, when the court imposes sentence upon a person convicted of an offense, the court must impose a sentence prescribed by this section.

 2. Revocable dispositions.

  (a) The court may impose a revocable sentence as herein specified:

   (i) the court, where authorized by article sixty-five, may sentence a person to a period of probation or to a period of conditional discharge as provided in that article;  or

   (ii) the court, where authorized by article eighty-five, may sentence a person to a term of intermittent imprisonment as provided in that article.

  (b) A revocable sentence shall be deemed a tentative one to the extent that it may be altered or revoked in accordance with the provisions of the article under which it was imposed, but for all other purposes shall be deemed to be a final judgment of conviction.

  (c) In any case where the court imposes a sentence of probation, conditional discharge, or a sentence of intermittent imprisonment, it may also impose a fine authorized by article eighty.

  (d) In any case where the court imposes a sentence of imprisonment not in excess of sixty days, for a misdemeanor or not in excess of six months for a felony or in the case of a sentence of intermittent imprisonment not in excess of four months, it may also impose a sentence of probation or conditional discharge provided that the term of probation or conditional discharge together with the term of imprisonment shall not exceed the term of probation or conditional discharge authorized by article sixty-five of this chapter. The sentence of imprisonment shall be a condition of and run concurrently with the sentence of probation or conditional discharge.

 3. Other dispositions.  When a person is not sentenced as specified in subdivision two, or when a sentence specified in subdivision two is revoked, the sentence of the court must be as follows:

  (a) A term of imprisonment;  or

  (b) A fine authorized by article eighty, provided, however, that when the conviction is of a class B felony or of any felony defined in article two hundred twenty, the sentence shall not consist solely of a fine;  or

  (c) Both imprisonment and a fine;  or

  (d) Where authorized by section 65.20, unconditional discharge as provided in that section;  or

  (e) Following revocation of a sentence of conditional discharge imposed pursuant to section 65.05 of this chapter or paragraph (d) of subdivision two of this section, probation as provided in section 65.00 of this chapter or to the sentence of imprisonment and probation as provided for in paragraph (d) of subdivision two of this section.

 4. In any case where a person has been sentenced to a period of probation imposed pursuant to section 65.00 of this chapter, if the part of the sentence that provides for probation is revoked, the court must sentence such person to imprisonment or to the sentence of imprisonment and probation as provided for in paragraph (d) of subdivision two of this section.
 

Section 60.02 Authorized disposition;  youthful offender

 When a person is to be sentenced upon a youthful offender finding, the court must impose a sentence as follows:

 (1) If the sentence is to be imposed upon a youthful offender finding which has been substituted for a conviction of an offense other than a felony, the court must impose a sentence authorized for the offense for which the youthful offender finding was substituted, except that if the youthful offender finding was entered pursuant to paragraph (b) of subdivision one of section 720.20 of the criminal procedure law, the court must not impose a definite or intermittent sentence of imprisonment with a term of more than six months;  or

 (2) If the sentence is to be imposed upon a youthful offender finding which has been substituted for a conviction for any felony, the court must impose a sentence authorized to be imposed upon a person convicted of a class E felony provided, however, that the court must not impose a sentence of conditional discharge or unconditional discharge if the youthful offender finding was substituted for a conviction of a felony defined in article two hundred twenty of this chapter.

(3) The provisions of section 60.35 of this article shall apply to a sentence imposed upon a youthful offender finding and the amount of the mandatory surcharge and crime victim assistance fee which shall be levied at sentencing shall be equal to the amount specified in such section for the offense of conviction for which the youthful offender finding was substituted.

Section 60.05 Authorized dispositions;  class A, B, certain C and D felonies and multiple felony offenders

 1. Applicability.  This section shall govern the dispositions authorized when a person is to be sentenced upon a conviction of a class A felony, a class B felony or a class C, class D or class E felony specified herein, or when a person is to be sentenced upon a conviction of a felony as a multiple felony offender.

 2. Class A felony.  Except as provided in subdivisions three and four of section 70.06 of this chapter, every person convicted of a class A felony must be sentenced to imprisonment in accordance with section 70.00, unless such person is convicted of either murder in the first degree and is sentenced in accordance with section 60.06 or of a class A-II felony and is sentenced to probation in accordance with section 65.00.

 3. Class B felony.  Except as provided in subdivision six, every person convicted of a class B violent felony offense as defined in subdivision one of section 70.02, must be sentenced to imprisonment in accordance with section 70.02;  and, except as provided in subdivision six, every person convicted of any other class B felony must be sentenced to imprisonment in accordance with section 70.00, unless such person is convicted of a class B felony defined in article two hundred twenty and is sentenced to a period of probation for life in accordance with section 65.00.

 4. Certain class C felonies.  Except as provided in subdivision six, every person convicted of a class C violent felony offense as defined in subdivision one of section 70.02, must be sentenced to imprisonment in accordance with section 70.02;  and, except as provided in subdivision six, every person convicted of the class C felonies of:  attempt to commit any of the class B felonies of bribery in the first degree as defined in section 200.04, bribe receiving in the first degree as defined in section 200.12, conspiracy in the second degree as defined in section 105.15 and criminal mischief in the first degree as defined in section 145.12;  criminal usury in the first degree as defined in section 190.42, rewarding official misconduct in the first degree as defined in section 200.22, receiving reward for official misconduct in the first degree as defined in section 200.27, criminal possession of a controlled substance in the fourth degree as defined in subdivision one, two, three, four, five, six, seven, eight or nine of section 220.09, or criminal sale of a controlled substance in the fourth degree as defined in subdivision one or two of section 220.34, to promote prostitution in the first degree as defined in section 230.32, promoting prostitution in the second degree as defined in section 230.30, arson in the third degree as defined in section 150.10, must be sentenced to imprisonment in accordance with section 70.00.

 5. Certain class D felonies.  Except as provided in subdivision six, every person convicted of the class D felonies of attempt to commit assault in the first degree as defined in section 120.10, or assault in the second degree as defined in section 120.05, attempt to commit a class C felony as defined in section 230.30, must be sentenced in accordance with section 70.00 or 85.00.

 6. Multiple felony offender.  When the court imposes sentence upon a second violent felony offender, as defined in section 70.04, or a second felony offender, as defined in section 70.06, the court must impose a sentence of imprisonment in accordance with section 70.04 or 70.06, as the case may be, unless it imposes a sentence of imprisonment in accordance with section 70.08 or 70.10.

 7. Fines.  Where the court imposes a sentence of imprisonment in accordance with this section, the court also may impose a fine authorized by article eighty and in such case the sentence shall be both imprisonment and a fine.

Section 60.06 Authorized disposition; murder in the first degree offenders; aggravated murder; certain murder in the second degree offenders; certain terrorism offenders; criminal possession of a chemical weapon or biological weapon offenders; criminal use of a chemical weapon or biological weapon offenders.

When a defendant is convicted of murder in the first degree as defined in section 125.27 of this chapter, the court shall, in accordance with the provisions of section 400.27 of the criminal procedure law, sentence the defendant to death, to life imprisonment without parole in accordance with subdivision five of section 70.00 of this title, or to a term of imprisonment for a class A-I felony other than a sentence of life imprisonment without parole, in accordance with subdivisions one through three of section 70.00 of this title. When a person is convicted of murder in the second degree as defined in subdivision five of section 125.25 of this chapter or of the crime of aggravated murder as defined in section 125.26 of this chapter, the court shall sentence the defendant to life imprisonment without parole in accordance with subdivision five of section 70.00 of this title. When a defendant is convicted of the crime of terrorism as defined in section 490.25 of this chapter, and the specified offense the defendant committed is a class A-I felony offense, or when a defendant is convicted of the crime of criminal possession of a chemical weapon or biological weapon in the first degree as defined in section 490.45 of this chapter, or when a defendant is convicted of the crime of criminal use of a chemical weapon or biological weapon in the first degree as defined in section 490.55 of this chapter, the court shall sentence the defendant to life imprisonment without parole in accordance with subdivision five of section 70.00 of this title; provided, however, that nothing in this section shall preclude or prevent a sentence of death when the defendant is also convicted of murder in the first degree as defined in section 125.27 of this chapter.

Section 60.07 Authorized disposition; criminal attack on operators for for-hire vehicles.

1. Notwithstanding any other provisions of law to the contrary, when a court has found, pursuant to the provisions of section 200.61 of the criminal procedure law, both that a person has been convicted of a specified offense as defined in subdivision two of this section and the victim of such offense was operating a for-hire vehicle in the course of providing for-hire vehicle services at the time of the commission of such offense, the sentence of imprisonment imposed upon conviction of such offense shall be the sentence authorized by the applicable provisions of article seventy of this chapter, provided, however, that the minimum term of a indeterminate sentence or minimum determinate sentence shall be not less than three years nor more than five years greater than the minimum term or sentence otherwise required to be imposed pursuant to such provisions. The provisions of this subdivision shall not apply where the court, having regard to the nature and circumstances of the crime and the history and character of the defendant, finds on the record that such additional term or sentence would be unduly harsh and that not imposing such additional term or sentence would be consistent with the public safety and would not deprecate the seriousness of the crime.

2. For purposes of this section:

a) the term "specified offense" shall mean an attempt to commit murder in the second degree as defined in section 125.25 of this chapter, gang assault in the first degree as defined in section 120.07 of this chapter, gang assault in the second degree as defined in section 120.06 of this chapter, assault in the first degree as defined in section 120.10 of this chapter, manslaughter in the first degree as defined in section 125.20 of this chapter, manslaughter in the second degree as defined in section 125.15 of this chapter, robbery in the first degree as defined in section 160.15 of this chapter, robbery in the second degree as defined in section 160.10 of this chapter, or attempted commission of any of the following offenses: gang assault in the first degree as defined in section 120.07, assault in the first degree as defined in section 120.10, manslaughter in the first degree as defined in section 125.20 or robbery in the first degree as defined in section 160.15;

b) the term "for-hire vehicle" shall mean a vehicle designed to carry not more than five passengers for compensation and such vehicle is a taxicub, as defined in section one hundred forty-eight-a of the vehicle and traffic law, a livery, as such term is defined in section one hundred twenty-one-e of the vehicle and traffic law, or a "black car", as such term is defined in paragraph (g) of this subdivision;

c) the term "livery car base" shall mean a central facility, wherever located, that dispatches a livery operator to both pick-up and discharge passengers in the state;

d) "for-hire vehicle services" shall mean:

(i) with respect to a taxicab, the transport of passengers pursuant to a license or permit issued by a local authority by a person duly authorized to operate such taxicub;

(ii) with respect to a livery, the transport of passengers by a livery operator while affiliated with a livery car base; or

(iii) with respect to a "black car", the transport of passengers by a "black car operator" pursuant to dispatches form or by a central dispatch facility regardless of where the pick-up and discharge occurs, and, with respect to dispatches from or by a central dispatch facility located outside the state, all dispatches involving a pick-up in the state, regardless of where the discharge occurs.

e) "livery operator" shall mean the registered owner of a livery, as such term is defined in section one hundred twenty-one-e of the vehicle and traffic law, or a driver designated by such registered owner to operate the registered owner's livery as the registered owner's authorized designee, where such registered owner or driver provides services while affiliated with a livery car base;

f) "black car operator" shall mean the registered owner of a "black car" or a driver designated by such registered owner to operate the registered owner's black car as the registered owner's authorized designee; and

g) "black car" shall mean a for-hire vehicle dispatched from a central facility, which has certified to the satisfaction of the department of state pursuant to article six-F of the executive law that more than ninety percent of the central facility's for-hire business is on a payment basis other than direct cash payment by a passenger.

Section 60.08 Authorized dispositions;  resentencing of certain controlled substance offenders

 Any person convicted of an offense and sentenced to prison for an indeterminate sentence, the minimum of which was at least one year and the maximum of which was life imprisonment, which sentence was imposed pursuant to chapter two hundred seventy-six, two hundred seventy-seven, two hundred seventy-eight, or ten hundred fifty-one of the laws of nineteen hundred seventy-three, and for which such sentence was imposed upon conviction of the crime of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the first degree, criminal sale of a controlled substance in the second degree, or criminal sale of a controlled substance in the third degree, and the sole controlled substance involved was methadone, may apply, upon notice to the appropriate district attorney, for resentencing in the court which originally imposed sentence.

 Such resentencing shall, unless substantial justice dictates otherwise, be pursuant to the current provisions of the penal law, and shall include credit for any jail time incurred upon the subject conviction as well as credit for any period of incarceration incurred pursuant to the sentence originally imposed.

  In cases where the proof before the court is not available or is not sufficiently reliable to determine the amount of methadone present in any preparation, compound, mixture or substance containing methadone, there shall exist a rebuttable presumption that each ounce of the preparation, compound, mixture or substance contained sixty milligrams of methadone.
 

Section 60.09 Authorized dispositions;  resentencing of certain persons convicted of specified controlled substance offenses

 a. Any person convicted of an offense as defined in section 115.05, 220.16, 220.18, 220.39 or 220.41 of this chapter or of an attempt thereof, for an act committed on or after September first, nineteen hundred seventy-three but prior to the date on which the provisions of this section become effective, may, upon notice to the appropriate district attorney, apply for resentencing in the court which originally imposed sentence.  Such resentencing shall be in accordance with the provisions of subdivision (b) of this section and shall include credit for any jail time incurred upon the subject conviction as well as credit for any period of incarceration incurred pursuant to the sentence originally imposed.

 b. A court, upon an application specified in subdivision (a) of this section may resentence a person as follows:

  (i) if the conviction was for a class A-III offense the court may impose a new maximum term which shall be no less than three times the amount of the minimum term imposed in the original sentence and no more than twenty-five years;

  (ii) if the conviction was for a class A-II offense the court may impose a new minimum term which shall be no less than three years imprisonment and no more than eight and one-third years;

  (iii) upon resentence of a person as specified in paragraph (i) of this subdivision the court shall resentence the person to the same minimum term previously imposed;

  (iv) upon resentence of a person as specified in paragraph (ii) of this subdivision the court shall impose a maximum term of life imprisonment;

  (v) if the conviction was for an offense as specified in section 115.05 of this chapter and the offense which was the object of the criminal facilitation was a class A-III felony then the court shall set aside the conviction and substitute it with a conviction for violation of section 115.01 or 115.00 of this chapter, whichever is appropriate under the facts of the case, and impose a sentence in accordance with those provisions.

 c. Upon resentence as provided in this section the court may not impose a sentence greater than the sentence previously imposed.
 

Section 60.10 Authorized disposition;  juvenile offender

 1. When a juvenile offender is convicted of a crime, the court shall sentence the defendant to imprisonment in accordance with section 70.05 or sentence him upon a youthful offender finding in accordance with section 60.02 of this chapter.

 2. Subdivision one of this section shall apply when sentencing a juvenile offender notwithstanding the provisions of any other law that deals with the authorized sentence for persons who are not juvenile offenders.  Provided, however, that the limitation prescribed by this section shall not be deemed or construed to bar use of a conviction of a juvenile offender, other than a juvenile offender who has been adjudicated a youthful offender pursuant to section 720.20 of the criminal procedure law, as a previous or predicate felony offender under section 70.04, 70.06, 70.08 or 70.10, when sentencing a person who commits a felony after he has reached the age of sixteen.
 

Section 60.11 Authorized dispositions;  criminal possession of a weapon in the fourth degree

 When a person is to be sentenced upon a conviction of the crime of criminal possession of a weapon in the fourth degree as defined in subdivision one of section 265.01 as a result of a plea of guilty entered in satisfaction of an indictment or count thereof charging the defendant with the class D violent felony offense of criminal possession of a weapon in the third degree as defined in subdivision four of section 265.02, the court must sentence the defendant in accordance with the provisions of section 70.15.
 

Section 60.12 Authorized dispositions;  alternative indeterminate sentence of imprisonment;  domestic violence cases

 1.  Notwithstanding any other provision of law, where a court is imposing sentence pursuant to section 70.02 upon a conviction for an offense enumerated in subdivision one of such section, other than an offense defined in article one hundred thirty of this chapter, and is authorized or required pursuant to such section to impose a determinate sentence of imprisonment for such offense, the court, upon a determination following a hearing that (a) the defendant was the victim of physical, sexual, or psychological abuse by the victim or intended victim of such offense, (b) such abuse was a factor in causing the defendant to commit such offense and (c) the victim or intended victim of such offense was a member of the same family or household as the defendant as such term is defined in subdivision one of section 530.11 of the criminal procedure law, may, in lieu of imposing such determinate sentence of imprisonment, impose an indeterminate sentence of imprisonment in accordance with subdivisions two and three of this section.

 2. The maximum term of an indeterminate sentence imposed pursuant to subdivision one of this section must be fixed by the court as follows:

   (a) For a class B felony, the term must be at least six years and must not exceed twenty-five years;

   (b) For a class C felony, the term must be at least four and one-half years and must not exceed fifteen years;

   (c) For a class D felony, the term must be at least three years and must not exceed seven years; and

   (d) For a class E felony, the term must be at least three years and must not exceed four years.

3. The minimum period of imprisonment under an indeterminate sentence imposed pursuant to subdivision one of this section must be fixed by the court at one-half of the maximum term imposed and must be specified in the sentence.
 

Section 60.20 Authorized dispositions;  traffic infraction

 1. When a person is convicted of a traffic infraction, the sentence of the court shall be as follows:

  (a) A period of conditional discharge, as provided in article sixty-five;  or

  (b) Unconditional discharge as provided in section 65.10;  or

  (c) A fine or a sentence to a term of imprisonment, or both, as prescribed in and authorized by the provision that defines the infraction;  or

  (d) A sentence of intermittent imprisonment, as provided in article eighty- five.

 2. Where a sentence of conditional discharge is imposed for a traffic infraction, all incidents of the sentence shall be the same as would be applicable if the sentence were for a violation.
 

Section 60.25 Authorized dispositions;  corporation

 When a corporation is convicted of an offense, the sentence of the court shall be as follows:

  (a) A fine authorized by section 80.10;  or

  (b) Where authorized by section 65.05, a period of conditional discharge as provided in that section;  or

  (c) Where authorized by section 65.20, unconditional discharge as provided in that section.

 In any case where a corporation has been sentenced to a period of conditional discharge and such sentence is revoked, the court shall sentence the corporation to pay a fine.
 

Section 60.27 Restitution and reparation

 1. In addition to any of the dispositions authorized by this article, the court shall consider restitution or reparation to the victim of the crime and may require restitution or reparation as part of the sentence imposed upon a person convicted of an offense, and after providing the district attorney with an opportunity to be heard in accordance with the provisions of this subdivision, require the defendant to make restitution of the fruits of his or her offense or reparation for the actual out-of-pocket loss caused thereby and, in the case of a violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action taken against the victim. The district attorney shall where appropriate, advise the court at or before the time of sentencing that the victim seeks restitution or reparation, the extent of injury or economic loss or damage of the victim, and the amount of restitution or reparation sought by the victim in accordance with his or her responsibilities under subdivision two of section 390.50 of the criminal procedure law and article twenty-three of the executive law.  The court shall hear and consider the information presented by the district attorney in this regard.  In that event, or when the victim impact statement reports that the victim seeks restitution or reparation, the court shall require, unless the interests of justice dictate otherwise, in addition to any of the dispositions authorized by this article that the defendant make restitution of the fruits of the offense and reparation for the actual out-of-pocket loss and, in the case of a violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, any costs or losses incurred due to any adverse action, caused thereby to the victim.  In the event that restitution or reparation are not ordered, the court shall clearly state its reasons on the record. Adverse action as used in this subdivision shall mean and include actual loss incurred by the victim and the consequential financial losses from such action.

 2. Whenever the court requires restitution or reparation to be made, the court must make a finding as to the dollar amount of the fruits of the offense and the actual out-of-pocket loss to the victim caused by the offense.  In making this finding, the court must consider any victim impact statement provided to the court.  If the record does not contain sufficient evidence to support such finding or upon request by the defendant, the court must conduct a hearing upon the issue in accordance with the procedure set forth in section 400.30 of the criminal procedure law.

 3. The provisions of sections 420.10, 420.20 and 420.30 of the criminal procedure law shall apply in the collection and remission of restitution and reparation.

 4. For purposes of the imposition, determination and collection of restitution or reparation, the following definitions shall apply:

  (a) the term "offense" shall include the offense for which a defendant was convicted, as well as any other offense that is part of the same criminal transaction or that is contained in any other accusatory instrument disposed of by any plea of guilty by the defendant to an offense.

  (b) the term "victim" shall include the victim of the offense, the representative of a crime victim as defined in subdivision six of section six hundred twenty-one of the executive law, an individual whose identity was assumed or whose personal identifying information was used in violation of section 190.78, 190.79 or 190.80 of this chapter, or any person who has suffered a financial loss as a direct result of the acts of a defendant in violation of section 190.78, 190.79, 190.80, 190.82 or 190.83 of this chapter, a good samaritan as defined in section six hundred twenty-one of the executive law and the crime victims' board or other governmental agency that has received an application for or has provided financial assistance or compensation to the victim.

5. (a) Except upon consent of the defendant or as provided in paragraph (b) of this subdivision, or as a condition of probation or conditional discharge as provided in paragraph (g) of subdivision two of section 65.10 of this chapter, the amount of restitution or reparation required by the court shall not exceed fifteen thousand dollars in the case of a conviction for a felony, or ten thousand dollars in the case of a conviction for any offense other than a felony. Notwithstanding the provisions of this subdivision, if an officer of a school district is convicted of violating any section of article one hundred fifty-five of this chapter where the victim of such crime is such officer's school district, the court may require an amount of restitution up to the full amount of the fruits of the offense or reparation up to the full amount of the actual out-of-pocket loss suffered by the victim, provided further that in such case the provisions of paragraph (b) of this subdivision shall not apply.

  (b) The court in its discretion may impose restitution or reparation in excess of the amounts specified in paragraph (a) of this subdivision, provided however that the amount in excess must be limited to the return of the victim's property, including money, or the equivalent value thereof;  and reimbursement for medical expenses actually incurred by the victim prior to sentencing as a result of the offense committed by the defendant.

 6. Any payment made as restitution or reparation pursuant to this section shall not limit, preclude or impair any liability for damages in any civil action or proceeding for an amount in excess of such payment.

 7. In the event that the court requires restitution or reparation to be made to a person and that person dies prior to the completion of said restitution or reparation, the remaining payments shall be made to the estate of the deceased.

 8. The court shall in all cases where restitution or reparation is imposed direct as part of the disposition that the defendant pay a designated surcharge of five percent of the entire amount of a restitution or reparation payment to the official or organization designated pursuant to subdivision eight of section 420.10 of the criminal procedure law.  The designated surcharge shall not exceed five percent of the amount actually collected.  Upon the filing of an affidavit of the official or organization designated pursuant to subdivision eight of section 420.10 of the criminal procedure law demonstrating that the actual cost of the collection and administration of restitution or reparation in a particular case exceeds five percent of the entire amount of the payment or the amount actually collected, as the case may be, the court shall direct that the defendant pay an additional surcharge of not more than five percent of the entire amount of a restitution or reparation payment to such official or organization, or the actual cost of collection or administration, whichever is less unless, upon application of the defendant, the court determines that imposition of such additional surcharge would cause undue hardship to the defendant, or any other person who is financially supported by the defendant, or would otherwise not be in the interest of justice.  Such additional surcharge, when added to the initial five percent surcharge, shall not exceed ten percent of the amount actually collected.

 9. If the offense of which a person is convicted is a class A, class B, class C, or class D felony involving the sale of a controlled substance, as defined in article two hundred twenty of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this section, in addition to its ordinary meaning, shall mean any law enforcement agency of the state of New York or of any subdivision thereof which has expended funds in the purchase of any controlled substance from such person or his agent as part of the investigation leading to such conviction.  Any restitution which may be required to be made to a law enforcement agency pursuant to this section shall be limited to the amount of funds expended in the actual purchase of such controlled substance by such law enforcement agency, less the amount of any funds which have been or will be recovered from any other source, and shall not include a designated surcharge pursuant to subdivision eight of this section.  Any law enforcement agency seeking restitution pursuant to this section shall file with the court and the district attorney an affidavit stating that funds expended in the actual purchase of a controlled substance for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding.  Any law enforcement agency receiving restitution pursuant to this section shall promptly transmit to the commissioner of the division of criminal justice services a report stating the dollar amount of the restitution received.

 10. If the offense of which a person is convicted is defined in section 150.10, 150.15 or 150.20 of this chapter, and no other victim who is a person is seeking restitution in the case, the term "victim" as used in this section, in addition to its ordinary meaning, shall mean any municipality which has expended funds or will expend funds for the purpose of restoration, rehabilitation or clean-up of the site of the arson.  Any restitution which may be required to be made to a municipality pursuant to this section shall be limited to the amount of funds reasonably expended or to be expended for the purpose of restoration, rehabilitation or clean-up of the site of the arson, less the amount of any funds which have been or will be recovered from any other source, and shall not include a designated surcharge pursuant to subdivision eight of this section.  Any municipality seeking restitution pursuant to this section shall file with the court, district attorney and defense counsel an affidavit stating that the funds reasonably expended or to be expended for which restitution is being sought have not been and will not be recovered from any other source or in any other civil or criminal proceeding.

* 11. Notwithstanding any other provision of this section to the contrary, when a person is convicted of harming an animal trained to aid a person with a disability in the second degree as defined in section 195.11 of this chapter, or harming an animal trained to a