determinate and indeterminate sentences in ny

In New York State, sentences for felony crimes are divided into two main categories – determinate and indeterminate sentences. Whether a sentence is determinate or indeterminate depends on if the felony is classified as “violent” or “non-violent.” This classification is based on how the statute defines the crime, not necessarily whether violence was used in the actual commission of the crime.

Determinate Sentences

Determinate sentences, sometimes called “flat” sentences, run for a specific period of time set by the judge, like 5 or 10 years. They generally apply to violent offenses, most sex offenses, and drug offenses. Under the Sentencing Reform Act of 1998, determinate sentences also have a separate period of post-release supervision that is set by the judge. This is different from indeterminate sentences where the length of parole supervision depends on how long the defendant serves in prison. Some examples of crimes that carry determinate sentences in New York include:

• Murder in the first and second degree
• Manslaughter in the first degree
• Aggravated sexual abuse
• Criminal possession of a controlled substance (drug offenses)

Conditional Release

A person serving a determinate sentence can receive merit time allowances against their sentence of up to 1/7th of the term imposed by the court. This means they must serve at least 6/7ths of their determinate sentence before being eligible for conditional release to parole supervision. For example, if someone is sentenced to 7 years for Assault in the First Degree, they would be eligible for conditional release after serving 6 years.

Indeterminate Sentences

In New York, an indeterminate sentence provides a range between a minimum and maximum number of years set by statute. The ranges are defined in Criminal Procedure Law Sections 70.00(2) and 70.00(3). Indeterminate sentences generally apply to non-violent felonies involving things like property theft or damage. Some examples include:

DEFENSE TEAM SPOTLIGHT

Todd Spodek

Lead Attorney & Founder

Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.

NY Bar Admitted Multi-State Licensed Federal Courts

Meet the Full Team

Legal Scenario: What Would You Do?

Scenario

After being convicted of a Class D violent felony in New York, you were sentenced to a determinate sentence of 4 years in prison plus 5 years of post-release supervision. You're confused because your co-defendant, who was convicted of a non-violent Class D felony for a related charge, received an indeterminate sentence of 2 to 7 years instead.

Why did my co-defendant get a different type of sentence than me for what seems like a similar crime, and which type of sentence is actually better for me?

Attorney's Answer

Under New York Penal Law § 70.02, violent felony offenses carry determinate sentences, meaning the judge sets a fixed prison term, while non-violent felonies under § 70.00 receive indeterminate sentences with a minimum and maximum range set by the court. Your 4-year determinate sentence means you will serve that fixed term (minus any good-time credit under DOCCS guidelines), whereas your co-defendant could potentially be paroled after serving the minimum of their 2-to-7-year range. The classification as 'violent' or 'non-violent' is based strictly on whether the offense appears in the statutory list under Penal Law § 70.02, not on the actual conduct involved. An experienced criminal defense attorney can evaluate whether your charge was properly classified and whether any sentencing errors occurred that could be challenged on appeal.

This is general information only. Contact us for advice specific to your situation.

• Grand Larceny
• Burglary
• Criminal Mischief

The sentencing ranges for different classes of indeterminate felonies are:

Parole Board